Jindal Global Law Review


VOLUME 7, ISSUE 2, 2016

Issue Editors: James J. Nedumpara, Rodrigo Polanco

Editor's Introduction : Does India need a model BIT? James J. Nedumpara and Rodrigo Polanco (PDF)


1. The changing landscape of investor-state arbitration in India
      Kabir Duggal
      Article (PDF) | Abstract

India’s new Model BIT is a response to the considerable concerns expressed by various sovereign states and civil society on the impact of Investor-State Dispute Settlement mechanism in affecting State autonomy and regulatory freedom. As a large developing country with a rising economy, the Indian experience offers the need to carefully circumscribe investor protection mechanisms especially considering the political and administrative governance challenges India has. The paper while arguing that the Indian experience offers one solution to balancing investor protection and state sovereignty, it reminds the concerned stakeholders of the challenges in negotiating or renegotiating India’s treaties based on the new Model BIT.
Duggal, K. Jindal Global Law Review (2016) 7: 127. https://doi.org/10.1007/s41020-016-0028-5.


2. Tussle for policy space in international investment norm setting: The search for a middle path?
       Srikar Mysore and Aditya Vora
        Article (PDF) | Abstract

The issue of international investment norm making has been the subject of considerable discussion and debate. The steady growth of bilateral investment treaties (BITs) along with investment norm setting in large mega regional trade agreements combined with recurring investor state disputes under these agreements bring out the growing relevance of this area of international economic law. States have begun to realise the importance of balancing their policy objectives with the rights of investors. Some of these approaches include the right to regulate provisions, increasing obligations on investors, departing from the original Investor-State dispute resolution mechanisms, etc. These approaches can be seen in the Trans-Pacific Partnership, the European Union proposal in the Trans-Atlantic Trade and Investment Partnership, Indian Model BIT, China–Australia Free Trade Agreement, and the Brazilian Co-operation and Investment Facilitation Agreements, which are the focus of the article. This article shows varying approaches and narratives on some of the core issues involved in investment disciplines and asks the question if there is a middle path in international investment norm making.
Mysore, S. & Vora, A. Jindal Global Law Review (2016) 7: 135. https://doi.org/10.1007/s41020-016-0029-4.


3. Indian international investment agreements and ‘non-investment concerns’?: Time for a right(s) approach
       Leila Choukroune
       Article (PDF) | Abstract

This article reviews India’s International Investment Agreements including its Bilateral Investment Treaty models in the light of Non Investment Concerns (NIC) and the integration—or not—of related measures furthering the State’s normative autonomy. In this context, particular attention is paid to the following issues: the right to regulate, human rights, development, labour, corporate social responsibility, the environment and anti-corruption. While certainly subjective, this perspective is based on today’s most recurring treaty practices, which respond, even timidly, to pressing “societal” challenges treaty drafters and adjudicators do not yet dare to formulate in a rights, and precisely human rights, language. The paper later shows the importance of a right-based approach in a changing international context and concludes in favour of a greater and original integration of NIC in India’s current negotiations and treaty drafting.
Choukroune, L. Jindal Global Law Review (2016) 7: 157. https://doi.org/10.1007/s41020-016-0030-y.


4. Bilateral investment treaties: A developing history.
      Kanu Agarwal
       Article (PDF) | Abstract

When an investor decides where to invest internationally, and where to set up the structure for the foreign investment, the investor’s attention is usually focused on a comparison of the tax rules, the return on investment, the local justice system and lastly the investment protection regime under international law. While attracting foreign investors, the host countries assess the investment’s sustainability, the repatriation rules, the expertise and the technology it brings and lastly the sectors in which the investment shall operate. To understand the complexities of this bargain, one needs to understand the ancestries of foreign investments and take into account the variables, along with the changing dynamics of the world economic order. This understanding of the history of foreign investment shall enable us to ascertain the reasons behind the allegedly lopsided nature of international investment laws and equip us to tackle the imminent problems effectively. It is in this backdrop that this article studies the Indian Bilateral Investment Treaties (BITs) regime. It was often argued that India had signed a large number of “old-style” treaties that may leave it vulnerable to challenges. India’s new model BIT represents the logical culmination of balancing of national and developmental interests especially in light of the history behind foreign investments. The new model BIT released by India’s Ministry of Finance unsurprisingly makes significant departures from the principles enshrined in earlier BITs, in order to tilt the balance back in favour of securing India’s sovereign rights, whilst promoting the developmental agenda. This article provides insights on the issues which may arise with the new Model BIT in the near future.
Agrawal, K. Jindal Global Law Review (2016) 7: 175. https://doi.org/10.1007/s41020-016-0031-x.


5. India’s shifting treaty practice: A comparative analysis of the 2003 and 2015 model BITs
       Aniruddha Rajput
       Article (PDF) | Abstract

India is the highest importer of foreign capital. The rights of foreign investors are protected through investment treaties, most of which are bilateral. India has recently issued a model bilateral investment treaty (BIT), which would form the basis for negotiating all future BITs. Model BIT is therefore an important statement about state practice. The recently issued Model BIT of 2015 introduces drastic changes in comparison to the 2003 Model BIT. The circumstances of the 2015 Model BIT are very different from the 2003 Model BIT and the change in circumstances has been accounted for the changes that have taken place in the 2015 Model BIT as compared to the 2003 Model BIT. The 2003 Model BIT followed a capital exporting country model, as India was still predominantly a capital exporting state. The 2015 Model BIT aims to protect India’s regulatory space while allowing protection to foreign investors under the BIT. This article analyses the shift in the treaty practice. This Model BIT brings about changes in the definition, jurisdiction, and the scope of protection, access to dispute resolution and introduction of exceptions and carve out provisions. The 2015 Model BIT seeks to reduce India’s exposure to potential investment claims. This shift in treaty practice is important since it has tendency to influence interpretation of treaties.
Rajput, A. Jindal Global Law Review (2016) 7: 201. https://doi.org/10.1007/s41020-016-0032-9.


6. General exceptions in the Indian model BIT: Is the ‘necessity’ test workable?
      Deepak Raju
      Article (PDF) | Abstract

In an attempt to preserve regulatory space, India’s 2015 Model BIT includes a list of General Exceptions. These provisions appear to be inspired by General Exceptions under the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS) of the WTO. These exceptions apply where the measure is “necessary” to achieve certain specified objectives, and is accompanied by a footnote that clarifies that the “necessity” test should be driven by the availability of less restrictive alternatives. This article argues that the necessity test, the concept of restrictiveness and the search for less restrictive alternatives may not be as workable in the investment context as they might in the trade context. In particular, a WTO-style necessity test may impair the ability of the state to ex ante predict whether a course of action would benefit from the General Exceptions, in situations where a large number of foreign investors are likely to be affected by the measure.
Raju, D. Jindal Global Law Review (2016) 7: 227. https://doi.org/10.1007/s41020-016-0036-5.


7. The revolution of Indian model bilateral investment treaty: Escaping liability without mitigating risks
      Azernoosh Bazrafkan
      Article (PDF) | Abstract

As of June 2016, India has been a respondent in seventeen publicly known investor-state disputes which places India in the category of one of the most challenged countries in the field of international investment arbitration. This article examines the safeguards identified by India in its 2015 Model BIT that seeks to mitigate the impact of investor-State dispute settlement in relation to India’s existing and future BITs. The article argues that India should choose an approach that seeks a fine balance between protecting investor’s interests as well as the host state’s interests. In this regard, the article identifies the free trade agreements that India has negotiated with the South East Asian countries as an appropriate template. While India’s Model BIT seeks to achieve this balance, the challenge remains in integrating this new approach to other existing international investment agreements.
Bazrafkan, A. Jindal Global Law Review (2016) 7: 245. https://doi.org/10.1007/s41020-016-0027-6.


8. The shift towards an enterprise-based definition of investment: The quagmire of the Salini test and India’s model BIT
     Bhagirath Ashiya
      Article (PDF) | Abstract

Developing countries seek to adopt a closed definition of investment as they reconsider the protection granted to investors, often creating imbalanced investor protection regimes. As the notion of investment continues to remain in a state of flux on an ideological basis, so does the legal determination of this economic concept by arbitral tribunals, producing highly inconsistent and contradictory results. This article analyzes the primordial issue of defining the notion of investment in ICSID arbitration and importantly the application of the Salini test, which remains inconclusive of its constitutive elements.
Ashiya, B. Jindal Global Law Review (2016) 7: 263. https://doi.org/10.1007/s41020-016-0035-6.


9. Methodology problems in international economic law and adjudication
     Ernst-Ulrich Petersmann
     Article (PDF) | Abstract

This overview of “methodology problems” in international economic law (IEL) and adjudication defines “legal methodology” as the “best way” for identifying the “sources” of law, legitimate authority, the methods of legal interpretation, law-making and adjudication, the “primary rules of conduct” and “secondary rules of recognition, change and adjudication”, the relationships between “legal positivism”, “natural law” and “social theories of law”, and the “dual nature” of modern legal systems. It discusses the methodological challenges resulting from the often incomplete, fragmented and under-theorized nature of multilevel, public and private regulation of transnational movements of goods, services, persons, capital and related payments. Governments and lawyers disagree on how to define the legitimate functions of IEL as an instrument of social change, the “legal system” of IEL, and how to transform the “law in the books” into socially effective “law in action” so as to protect the rights and welfare of citizens more effectively. Democratic, republican and cosmopolitan constitutionalism suggest that the five competing conceptions of IEL as (1) international law among states, (2) private international law (e.g. commercial, investment and “conflicts law”), (3) multilevel economic regulation (e.g. based on “law and economics”), (4) global administrative law and (5) multilevel constitutional law (e.g. in European common market and monetary regulation) need to be integrated; they must protect democratic, republican and cosmopolitan rights of citizens who—as “constituent powers”, “democratic principals” and main economic actors—must hold multilevel governance institutions and their limited, delegated powers legally, democratically and judicially more accountable so as to limit “market failures” as well as “governance failures” more effectively. Arguably, the universal recognition of human and constitutional rights of citizens requires cosmopolitan reforms of IEL and stronger judicial remedies for protection of transnational rule of law.
Petersmann, EU. Jindal Global Law Review (2016) 7: 279. https://doi.org/10.1007/s41020-016-0033-8.



10. Investment treaty arbitration as public international law: procedural aspects and implication by

      Eric De Brabandere
      Akriti Gupta