India's New Model Investment Treaty: Fit for Purpose?
(2017) 1 Indian Law Review, Forthcoming
36 Pages Posted: 7 Jul 2017 Last revised: 6 Aug 2017
Date Written: June 1, 2017
In December 2015, India released a new model bilateral investment treaty. The development of such models typically serves four purposes: facilitating negotiations with partner states; constituting state practice which may contribute to the formation of customary international law; providing interpretive guidance to tribunals; and promoting uniformity in international law. However, despite some innovative provisions, the new Indian model displays a lack of drafting clarity in some respects, and a degree of redundancy in other respects. These deficiencies make it doubtful whether the model can achieve any of its purposes. India appears to remain committed to (a reformed version of) the investment treaty system, not least on behalf of the burgeoning numbers of outward Indian investors. The model’s failings are therefore all the more acute, and pose challenges for India’s ambitions to play a greater role in the system, while also potentially representing a missed opportunity for India’s broader role in the ‘Asian century’.
Keywords: bilateral investment treaties, arbitration, general international law, counterclaims, expropriation, exhaustion of local remedies, frivolous claims, domestic law, treaty conflict, ICSID Convention
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