Measuring the Strength of Sustainability in India’s New Model Bilateral Investment Treaty 2015: A Legal Discourse

Abstract

This research addresses the question; does the Indian Model Bilateral Investment Treaty (BIT) 2015 encourage parties to promote Sustainable Development (SD)? In other words, does the Model BIT 2015 integrate SD objectives into the investment rules to actively promote sustainable investments? Given the word constraints of the present work, the analysis has been made from the examination and review of selective substantive provisions, namely – the Preamble, Definition of Investment, Expropriation, Corporate Social Responsibility (CSR) and General Exceptions. This work is a step forward in understanding better how well the substantive dimension of India’s Model BIT integrates SD objectives. The work consists of five sections; each section is dedicated towards the analysis of one of the aforementioned provisions. The analysis of every single provision begins with a brief insight on the relevance of the provision toward the integration of SD objectives. Secondly, the analysis makes a comparative study of the provision under scrutiny in India’s Final Model 2015 with India’s Model BIT 2003 and India’s Draft Model BIT 2015. The focus here is on the change in the language of the treaty text to reveal the intention of the drafters. The analysis also studies the comments made by the Law Commission in their Report No. 260 to see to what extent, their suggestions were incorporated in order to shed light on the intention of the legislators and thus, achieve clarity on the purpose of the provision under evaluation. The third and final stage of the analysis assesses the treaty text in the light of the contentious issues surrounding each of the provisions, which may be a prospective challenge in the integration of SD objectives. This involves attempts to estimate the efficacy of the treaty language at the backdrop of the trends set by tribunals and viewpoints of various scholars. This will help in understanding the potential of the provision in furthering SD objectives

Keywords: Bilateral Investment Treaty, Corporate Social Responsibility, Expropriation, Investment, Sustainable Development