Investor State Dispute Settlement in the 2016 Indian Model Bilateral Investment Treaty: Does It Go Too Far?

Abstract

After being hit recently by many ISDS claims under different BITs, including one by Australian investors challenging delays in its legal system, India adopted a new Model BIT 2016 to guide negotiations which ostensibly balances the rights of foreign investors with the host State’s right to regulate. This chapter will critically discuss the ISDS provisions in India’s new Model BIT to show that it tilts the balance in favour of the host State by making it very difficult for foreign investors to bring ISDS claims against a host State. The chapter will discuss key issues pertaining to provisions dealing with the jurisdiction of ISDS tribunals, the requirement to exhaust local remedies by foreign investors for at least five years, transparency of the ISDS process, appointment of arbitrators, questions related to standard of review and governing law, and proposals for an appellate mechanism. The chapter will also contrast the ISDS provisions in India’s Model BIT with the ISDS provisions present in the ASEAN-India investment agreement, which was signed almost at the same time when India was still working towards its model BIT. The chapter argues that the ISDS provisions in the ASEAN-India investment agreement provide a much better balance between the rights of foreign investors and host State’s right to regulate. Given also that India is emerging as a major capital-exporting country, India could consider amending the ISDS provisions in the model BIT and use instead the ISDS provision in the ASEAN-India investment agreement as the template for negotiating future treaties and as it reviews its older ones.