Volume 1 Issue 2

Volume 1 Issue 2

Decoding Investor-State Dispute Settlement through the Lens of BIT

By Vaishnavi Patel and Priya Maharishi,
Student , Gujarat National Law University and Jindal Global Law School

Abstract

There has been an increase in Investor-State Dispute Settlement claims against India due to its retrospective tax amendment of 2012 which allegedly violates its obligations under Bilateral Investment Treaties (BIT). BIT, with an objective of protection and promotion of foreign investment, fails in balancing the rights of the foreign investor and the regulatory discretion of the host state. BIT clauses are interpreted in a pro-investor manner by the arbitral tribunal in an investor-state dispute.

The paper aims at examining pro-investor interpretation of ‘fair and equitable treatment’ clauses present in BIT under Investor-State Dispute Settlement (ISDS). It considers the issue of imbalance in the investor’s rights and the host state’s regulatory discretion when exercised for the national interest. India’s BIT Model 2016 focusing on balancing the two, ended up being ‘pro-state’. Therefore, this paper provides recommendations for public arbitral awards, adoption of a mutually beneficial approach rather than a defensive approach by India, including interpretative guidance in the treaty and adopting a process of mediation settlement converted to an arbitral award approach for ISDS.

Recommended Citations :

OSCOLA

Vaishnavi Patel and Priya Maharishi, ‘Decoding Investor-State Dispute Settlement through the Lens of BIT’, [2021] 2 IJBLS

https://intbusinesslaw.com/decoding-investor-state-dispute-settlement-through-the-lens-of-bit/

Bluebook 19th Ed.

Vaishnavi Patel and Priya Maharishi, Decoding Investor-State Dispute Settlement through the Lens of BIT, 1 IJBLS 2, 33-50 (2021)