A recent judgment delivered by the Supreme Court of India on October 5, 2017 represents a significant milestone insofar as the judicial treatment of contractual liability of the State vis-à-vis private individuals/companies in the sphere of commercial contracts in India is concerned. The stated Supreme Court decision reaffirms the principle that even in the contractual sphere, no activity of the state, whether by itself or through any of its forms or agencies, can be arbitrary, unfair or unreasonable. Once the State or its instrumentality is party to a contract, it has an obligation in law to act fairly, justly and reasonably and the state, like any private party, is bound by the express terms of the agreement entered into by it.
The author has separately dealt with two of the most controversial issues relating to TPF namely, “ordering security for costs in TPF” and “awarding successful claimants their costs of TPF”. However, as of now they are only of an academic deliberation and does not have a definite legal standing, due to conflicting precedents and multifarious views of eminent scholars/arbitrators.Read More »
On 1st July 2017, the International Criminal Court completed 15 years. While there are 24 cases that have been brought before the Court, it has only managed to convict 4 individuals in all these years, but it is hoped that it carries to deliver universal justice in an unprecedented manner.
Introduction – Cogs of the same wheel – Trade and FDI
From where do we get the much-assumed co-relation between trade and Foreign Direct Investment (FDI)? Let us draw from the theory of Grazia Ietto-Gillies who opined that the reason for the growth of FDI and MNCs were rooted in neoclassical economics based on macro-economic principles. These theories were based on the classical theory of trade in which the motive behind the trade was a result of the difference in the costs of production of goods between two countries, focusing on the low cost of production as a motive for a firm’s foreign activity. The relation between trade and FDI flows from this. Analytical work has recently been developed by OECD in order to explore the nature of these links in quantitative terms. Read More »
[This article was published at EFILA Blog (here) on 2nd May, 2017]
While allowing investors the right to directly bring a claim against the States has said to be the single most progressive development in International Law in the 20th century, they also have gained recognition as ‘subjects’ of international law. It is this recognition which puts a corollary duty on the investor to regard human rights while carrying out activities in the host state. Over the past couple of decades, there has been a growth in, both, international human rights jurisprudence and investment arbitration claims by investors against States. With both procedural and substantive matters of importance coming to the fore, it has led to the convergence of both the areas and raised a valid concern of the importance of erga omnes obligations of human rights in investment arbitration. A human rights concern is a two-way street, with States being concerned about human rights violations by the investor in their territory and the investor being careful that his/her human rights are not unjustly violated by the State.
Mr. João Ribeiro serves as the Head of Regional Centre for Asia and the Pacific, United Nations Commission on International Trade Law (UNCITRAL), Incheon, Republic of Korea. He leads the Centre’s efforts in providing advice to Governments in Asia-Pacific region on the development of long-term strategies for the promotion of the harmonisation and of the modernisation of international trade law.
The views expressed herein are his own and do not necessarily reflect the views of the United Nations.Read More »
Arbitration in India in the past couple of years has seen some major changes. As the Arbitration Amendment and Conciliation (Amendment) Act, 2015 (hereinafter “the 2015 Amendment”) brought some drastic substantive and procedural changes in arbitral jurisprudence, the Indian judiciary, starting with BALCO v. Kaiser, has also made an attempt to make the environment as conducive as possible for arbitration, putting it on an international pedestal with the aim of making India a preferred seat of arbitration. In the recent judgment of Voestalpine Schienen GmBH (VSG) v. Delhi Metro Rail Corporation Limited (DMRC), the Supreme Court clarified Section 12 of the Arbitration and Concilliation Act, 1996 (hereinafter “the Act”) for the purposes of impartiality and neutrality required for the appointment of an Arbitrator and settled the issue at an Apex stage, though future disputes with respect to Section 12 can be expected as the adjudication was not holistic in that regard.