Model India BIT of 2016
Keywords:
Business-IT (BIT) model, increasingly, popularity, implications, settlementAbstract
In today's increasingly competitive business world, organizations are constantly looking for ways to enhance their performance and stay ahead of the curve. One such method that has gained widespread popularity in recent years is the Business-IT (BIT) model. The BIT model emphasizes the integration of technology and business processes to optimize performance and drive innovation. Over the years, India has been a popular destination for foreign investors and businesses seeking new markets and
opportunities. However, the country's legal framework for foreign investments has often been criticized for its lack of clarity, transparency, and consistency. To address these concerns, the Indian government unveiled a Model Bilateral Investment Treaty (BIT) in 2016, which seeks to provide a standardized framework for investment protection and dispute settlement. This article outlines the key features of the Model India BIT, analyses its implications for foreign investments and businesses, and assesses its prospects for promoting India's economic growth and development.
References
From a negligible number in early 1990s, the total number of known treaty-based ISDS cases rose to 767 as of 1st January 2017; See UNCTAD, Investment Dispute Settlement Navigator, http://investmentpolicyhub.unctad.org/ISDS.
For more on South Africa’s BIT practice see Engela C. Schlemmer, An Overview of South Africa’s Bilateral Investment Treaties and Investment Policy 31:1 ICSID REV—Foreign Inv. L.J. 167 (2016). Also see Michael Webb, New Treatment of Foreign Investors in South Africa, http://isds.bilaterals.org/?new-treatment-of-foreign-investors&lang=en. Some scholars support countries denouncing the ISDS system, see M. Sornarajah, Resistance And Change In International Law On Foreign Investment (2015).
See, comments of Gus van Harten on the text of 2015 Draft India Model Bilateral Investment Treaty Text, https://www.mygov.in/group-issue/draft-indian-Model-bilateral-investment-treaty-text/
Aditya Kalra, India Privately took Amazon to Task Over Insulting Flag doormat (31 March 2017), http://in.reuters.com/article/amazon-com-india-politics-idINKBN17208G
See Law Commission of India, Report No 245, Arrears and Backlog: Creating Additional Judicial (wo)manpower, http://lawcommissionofindia.nic.in/reports/Report_No.245.pdf
Art. 7.2 of the German Model BIT 2005 - Art. 10.2 of the Swiss Model BIT; See, Christoph Schreuer, Travelling the BIT Route: of Umbrella Clauses, and Forks in the Road, 5:2 J. WORLD INV. & TRADE (2004); Anthony C. Sinclair, The Origins of the Umbrella Clause in the International Law of Investment Protection, 20:4 ARBITR. INT’L. (2004) 411-434; Jonathan B. Potts, Stabilizing the Role of Umbrella Clauses in Bilateral Investment Treaties: Intent, Reliance and Internationalization, 51:4 VA. J. INT’L. L. (2011) 1005; Eric De Brabandere, Investment Treaty Arbitration As Public International Law – Procedural Aspects And Implications 38 (2014).
Salacuse, Law of Investment Treaties, supra note 1, 343; Andrew Newcombe, General Exceptions in International Investment Agreements in Sustainable Development In World Investment Law 356–357 (Marie-Claire C. Segger et. al. eds. 2011)
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AAPL supra note 124; American Manufacturing & Trading, Inc. v. Republic of Zaire, ICSID Case No ARB/93/1, Award (Feb. 21, 1997).
See Henckels, Protecting Regulatory Autonomy supra note 27, who offers similar critique for the EUCanada CETA that contains similarly worded expropriation provision as the Indian Model BIT. This test has also been criticized by others.
OECD, Most-Favoured-Nation Treatment in International Investment Law, OECD Working Papers on International Investment 2004/02, http://www.oecd.org/daf/inv/investment-policy/WP-2004_2.pdf; Okezic Chukwumerije, Interpreting Most-Favoured-Nation Clauses in Investment Treaty Arbitrations, 8 J. World Inv. & Trade 597, 608 (2007); Jürgen Kurtz, The MFN Standard and Foreign Investment: An Uneasy Fit, 5 J. World inv. & trade 861, 873 (2004). [hereinafter, MFN Standard and Foreign Investment]
Government of India, Ministry of Commerce and Industry, Department of Industrial Policy and Promotion, (July 25, 2016), http://www.dipp.gov.in/English/questions/25072016/lu1290.pdf
Comments on the 2015 Draft Indian Model BIT, https://www.mygov.in/group-issue/draft-indianModel-bilateral-investment-treaty-text/
