India’s International Investment Agreements and India’s Regulatory Power as a Host Nation
PhD Thesis, King's College London, 2012
267 Pages Posted: 13 Aug 2013
Date Written: August 12, 2012
There has been an exponential growth in International Investment Agreements (IIAs), signed by countries to protect foreign investments, in last two decades. These agreements provide broad standards of treatment and give private investors the right to challenge allegedly treaty-inconsistent regulatory actions of sovereign countries at international arbitration. Over the last decade or so, such investor-state disputes have increased manifold where all sorts of regulatory actions, like urban policy; health policy; monetary measures; taxation, property rules, environmental policy, have been challenged by private investors. These developments have not only brought the investor-state dispute settlement system under the scanner but have also made it imperative to critically review the substantive law the investor-state tribunals apply i.e. the IIAs. In this light, this thesis will critically analyse Indian IIAs, which have not been subjected to detailed research yet, despite India’s gigantic IIA programme and India’s increasing integration with the global economy. This thesis will analyse the provisions on fair and equitable treatment; expropriation; monetary transfer; and non precluded measures (NPM) in 73 Indian IIAs from the perspective of India’s regulatory power as a host nation. The thesis hypothesises that the present formulations of these four provisions, in Indian IIAs, are capable of being interpreted in a manner that gives precedence to investment protection over India’s regulatory power to adopt policies and measures directed at achieving legitimate policy objectives. Hence, the thesis concludes that these provisions in Indian IIAs should be reformulated in a manner that balances investment protection with India’s regulatory power.
Keywords: India, International Investment Agreements (IIAs), Bilateral Investment Treaties (BITs), Regulatory Power
JEL Classification: K33
Suggested Citation: Suggested Citation