ISDS Transparency Provisions in the Indian Model BIT: A Half-Hearted Attempt?

2017 ◽  
Author(s):  
Prabhash Ranjan
Keyword(s):  
Indian Model Bit

scholarly journals What worth is a BIT? Impact of BITs on FDI Inflows into India

2018 ◽  
Vol 4 (02) ◽  
Author(s):  
Anshuman Kamila ◽  
Mitali Chinara
Keyword(s):  
Economic Growth ◽  
Developing Countries ◽  
Foreign Direct Investment ◽  
Direct Investment ◽  
Best Practice ◽  
Foreign Investors ◽  
Fdi Inflows ◽  
New Model ◽  
Indian Model Bit ◽  
The Government

Developing countries often consider foreign direct investment (FDI) as an engine to boost economic growth. Therefore they try to promote investment inflow by various means. One approach is to offer investment guarantees to foreign investors using Bilateral Investment Treaties (BITs). Following international best practice, India has signed a number of BITs to stimulate inflow of FDI. Till date, the Government of India has signed BITs with 83 countries. These BITs were largely negotiated on the basis of the Indian Model BIT of 1993. There have been recent moves that point in the direction of India fundamentally altering the text of its BITs with countries, including calling off existing BITs and approving a new model BIT. However, concerns have been raised as to the possible pernicious impact of these changes on the inflow of FDI into India. This paper investigates whether the concern is warranted at all – by asking if BITs significantly impact the inflow of FDI. It is established that BIT is indeed a veritable boost to FDI inflow, and the estimated coefficient remains significant and robust across econometric specifications. Therefore, a note of caution is sounded for the rejigging exercise involving BITs that has been initiated by India.

The 2016 Indian Model BIT

2019 ◽  
pp. 310-350 ◽  
Author(s):  
Prabhash Ranjan
Keyword(s):  
Foreign Investor ◽  
Indian Government ◽  
Foreign Investors ◽  
Investment Protection ◽  
Indian Model Bit ◽  
Monetary Transfer ◽  
Narrow Definition ◽  
Definition Of ◽  
Effective Use ◽  
Full Protection

This chapter studies India’s 2016 Model BIT, which the Indian government claims aims to balance investment protection with the state’s right to regulate. The chapter shows that barring some of the provisions like full protection and security and monetary transfer provisions, the Model BIT has not succeeded in reconciling the interests of foreign investors with the state’s right to regulate. The Model BIT contains a narrow definition of investment; an extremely narrow FET-type provision; excludes MFN clause and taxation measures from the purview of the BIT. Furthermore, the expropriation provision in the Model BIT blurs the line between lawful and unlawful expropriation; and provides a complicated and sequential ISDS making it extremely difficult for a foreign investor to make effective use of it. Furthermore, although the attempt of the Model BIT is to reduce arbitral discretion, many provisions still remain undefined and vague, thereby continuing to grant significant discretion to ISDS arbitral tribunals.

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