The 2016 Model Indian Bilateral Investment Treaty: A Critical Deconstruction
38 (1) Northwestern Journal of International Law and Business, 2017, 1-53
45 Pages Posted: 5 Apr 2017 Last revised: 27 Dec 2017
Date Written: April 4, 2017
In the global backdrop of backlash against bilateral investment treaties (BITs) and the investor-State dispute settlement (ISDS), this paper critically studies India’s new Model BIT, adopted in 2016 as a response to increasing number of ISDS claims brought against India. The paper studies the Indian Model BIT, which heralds a new era of India’s BIT practice, from the standpoint of two key objectives that the Indian government claims the Model BIT achieves. First, the claim that the purpose of the Model BIT is to balance investment protection with host State’s right to regulate. Second, the claim that the Model BIT aims to make the treaty provisions more precise so as to minimise arbitral discretion. The paper shows that for most of the key provisions given in the Model BIT, contrary to the Indian government’ claim, India has not been able to strike a balance between investment protection and host State’s right to regulate. For most of the provisions the scale tilts in favour of host State. The paper also shows that many provisions in the Indian Model BIT, contrary to the government’s claim, are vague and imprecise and thus, continue to grant significant discretion to ISDS arbitral tribunals to determine the actual import of these provisions.
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