INDIA’S EXPERIENCE WITH INVESTOR-STATE DISPUTE SETTLEMENT
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DOI:
https://doi.org/10.55662/IJLDAI.2022.8609Keywords:
Promotion and Protection Agreement, Investment, Philip Morris case, jurisdictionAbstract
In the present era, the influence of globalisation is so intense that the impact of a single incident can be globally sensed because of the interconnected economies. Any incident, be it financial or non-financial, touches upon the fates of majority of the nations that are linked worldwide. The breakdown of Lehman Brothers incessantly pushes us towards the reality of this world. Likewise, a single untoward decision, be it under some policy or piece of legislation, by the administration activates the concerns of the community globally comprising of investors and their host governments. To palliate concerns of such untoward decision-making, the community worldwide by means of several international as well as bilateral agreements has instituted rules in order to safeguard the capital that flows between geographies.
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References
Simon Weber, What Happened To Investment Arbitration In India?, March 27, 2021, Kluwer Arbitration Blog at https://arbitrationblog.kluwerarbitration.com/2021/03/27/what-happened-to-investment-arbitration-in-india/.
Data from the Investment Dispute Settlement Navigator, Investment Policy Hub maintained by the United Nations Conference on Trade and Development (UNCTAD), available at: https://investmentpolicy.unctad.org/investment-dispute-settlement.
Restitution requires the re-establishment of the situation that had existed before the commission of an internationally wrongful act or the status quo ante. See https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1094?prd=OPIL&q=Restitution.
Masood, S. (2019, May 12,). Pakistan to accept $6 billion bailout from I.M.F. The New York Times, available at: https://www.nytimes.com/2019/05/12/world/asia/pakistan-imf-bailout.html.
Gus Van Harten, “TWAIL and the Dabhol Arbitration”, 3 Trade L. & Dev. 131 (2011).
White Industries Australia Limited v The Republic of India, Final Award dated 30 November 2011, UNCITRAL Arbitration.
Article 4(5) of the India-Kuwait BIT provides that ‘each contracting party shall…provide effective means of asserting claims and enforcing rights with respect to investments…’. Article 4(2) of the India-Australia BIT provides the MFN provision according to which, ‘a contracting party shall at all times treat investments in its territory on a basis no less favourable than that accorded to investments or investors of any third country’.
Sebastian Perry, Logjam in Indian courts triggers BIT breach, 13 February 2012, available at: https://globalarbitrationreview.com/article/logjam-in-indian-courts-triggers-bit-breach.
PCA Tribunal finds India in breach of treaty in Vodafone tax dispute, available at: https://hsfnotes.com/publicinternationallaw/2020/10/05/pca-tribunal-finds-india-in-breach-of-treaty-in-vodafone-tax-dispute/.
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