Prabhash Ranjan
- Published in print:
- 2019
- Published Online:
- August 2019
- ISBN:
- 9780199493746
- eISBN:
- 9780199097081
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780199493746.003.0005
- Subject:
- Law, Public International Law
Continuing on the discussion on the key features of Indian BITs from the previous chapter, this chapter studies the following provisions in India’s BITs and FTA investment chapters: expropriation; ...
More
Continuing on the discussion on the key features of Indian BITs from the previous chapter, this chapter studies the following provisions in India’s BITs and FTA investment chapters: expropriation; monetary transfer provisions; general exception clauses; and the investor–state dispute settlement (ISDS) provisions. Like chapter 4, this chapter will also discuss these provisions against the background of ISDS jurisprudence that has emerged on these four issues. The chapter demonstrates that these provisions in many treaties are worded broadly and the determination of the content is subject to arbitral discretion. These broadly worded treaty provisions, subject to arbitral discretion, fail to balance investment protection and host state’s right to regulate. India was primarily a ‘rule taker’ in international investment law because most of these provisions in Indian BITs are borrowed from the BITs of ‘capital exporting’ countries that followed the laissez faire liberalism model.Less
Continuing on the discussion on the key features of Indian BITs from the previous chapter, this chapter studies the following provisions in India’s BITs and FTA investment chapters: expropriation; monetary transfer provisions; general exception clauses; and the investor–state dispute settlement (ISDS) provisions. Like chapter 4, this chapter will also discuss these provisions against the background of ISDS jurisprudence that has emerged on these four issues. The chapter demonstrates that these provisions in many treaties are worded broadly and the determination of the content is subject to arbitral discretion. These broadly worded treaty provisions, subject to arbitral discretion, fail to balance investment protection and host state’s right to regulate. India was primarily a ‘rule taker’ in international investment law because most of these provisions in Indian BITs are borrowed from the BITs of ‘capital exporting’ countries that followed the laissez faire liberalism model.
Prabhash Ranjan
- Published in print:
- 2019
- Published Online:
- August 2019
- ISBN:
- 9780199493746
- eISBN:
- 9780199097081
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780199493746.003.0006
- Subject:
- Law, Public International Law
This chapter studies closely the ISDS claims brought against India. A careful analysis shows the following: First, cases like White Industries v. India and Devas Multimedia v. India expose the broad ...
More
This chapter studies closely the ISDS claims brought against India. A careful analysis shows the following: First, cases like White Industries v. India and Devas Multimedia v. India expose the broad and vague language of Indian BITs. Second and equally important is the fact that these cases show that none of the claims have been brought against India because India exercised her sovereign public power in good faith in order to attain an important public policy goal such as protection of the environment or promotion of public health etc. All these claims have arisen against India mainly due to bad regulation. Third, these ISDS claims also show the failure of the organs of the Indian State to be sufficiently sensitive to India’s BIT obligations. Fourth, a closer study of these cases especially of the cases brought by Vodafone and Cairn energy shows India’s hostile attitude towards ISDS.Less
This chapter studies closely the ISDS claims brought against India. A careful analysis shows the following: First, cases like White Industries v. India and Devas Multimedia v. India expose the broad and vague language of Indian BITs. Second and equally important is the fact that these cases show that none of the claims have been brought against India because India exercised her sovereign public power in good faith in order to attain an important public policy goal such as protection of the environment or promotion of public health etc. All these claims have arisen against India mainly due to bad regulation. Third, these ISDS claims also show the failure of the organs of the Indian State to be sufficiently sensitive to India’s BIT obligations. Fourth, a closer study of these cases especially of the cases brought by Vodafone and Cairn energy shows India’s hostile attitude towards ISDS.
