India’s Joint Interpretive Statement for BITs: An Attempt to Slay the Ghosts of the Past

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By Sarthak Malhotra

(This article was originally published in ITN Quarterly, December 2016, International Institute for Sustainable Development here.)

India has bilateral investment treaties (BITs) or bilateral investment promotion agreements (BIPAs) in force with 72 countries.[1] The initial duration of these agreements with 25 countries has not yet expired.[2] The Government of India (Government) has recently begun negotiations with these countries proposing a Joint Interpretative Statement (Statement)[3] containing clarifications similar to the text of India’s new Model BIT.[4] We highlight below nine of the clarifications included in the Statement.Read More »

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Transparency in International Commercial Arbitration: The Road Ahead

By Sarthak Malhotra 

In 1995, a former Secretary General of the ICC International Court of Arbitration, Stephen R. Bond, in an article, noted that the users of international commercial arbitration “almost invariably” mentioned the fact that the arbitral proceedings and the resulting award do not enter into the public domain as a feature which attracted parties to it.[1] Whether confidentiality is an essential feature of international arbitration cannot be stated with certainty, considering how the New York Convention and the UNCITRAL Model Law on International Commercial Arbitration do not expressly recognize it.Read More »

[Part-I] Philip Morris v. Uruguay- Indirect Expropriation, Police Power, Trademarks and More.

The arbitral tribunal of Prof. Piero Bernardini (President), Mr. Gary Born, Judge Prof. James Crawford in Philip Morris v. Oriental Republic of Uruguay (ICSID Case No. Arb/10/7) has finally ruled on merits, dismissing the claims presented by Philip Morris (“PM”) and awarding costs to the tune of US$ 7 million to Uruguay. This award will have huge implications on the tobacco industry and countries like India who are seeking to regulate tobacco consumption through plain packaging measures as it was reportedly the first time a tobacco group had taken on a country for its anti-tobacco laws. Many are characterising Uruguay’s victory as something that will change the world.  In this post, I will only focus on the claim of expropriation and the other claims of denial of justice, fair and equitable treatment and impairment of use and enjoyment of investments will be discussed in subsequent posts. Read More »

India’s Federalism and Investment Arbitration

By Sarthak Malhotra

A key area of exposition both in Public International Law and Investment Arbitration is what constitutes an ‘act of state’.( ‘State Responsibility and Attribution’ in Schreuer,. and Dolzer, Principles of international investment law (2008), 195-205) The Draft Articles on State Responsibility has been a ground-breaking work in codifying the rules of attribution of responsibility to the states. A related issue in this regard is the attribution of liability to a State in cases of breach of its treaty obligations by its political sub-divisions.Read More »

Washing the Dirty Linen of the “Dallah” in Public? 

 By Shriya Maini*

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The dispute arose out of a contract between Dallah Real Estate and Tourism Holding Company, a Saudi Arabian company and the Government of Pakistan to provide housing in Saudi Arabia for Pakistani pilgrims to Mecca.

Divergent decisions of the French[1] and English[2] courts on the Dallah case reiterate that the enforcement of arbitral awards under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Award, 1958 (“NYC”) is not as straightforward in practice as it is in principle. In this essay, I elucidate the law laid down by the two incompatible judgments rendered by two different national courts in the Dallah case and conclude that the French Court’s approach was most satisfactory.Read More »

Interview: Ms. Samira Sulejmanovic, Head of Unit for Bilateral Trade Relations, Bosnia & Herzegovina

Ms. Samira Sulejmanovic is the Head of Unit for Bilateral Trade Relations, Ministry of Foreign Trade and Economic Relations of Bosnia & Herzegovina. She oversees the negotiation and implementation of international agreements (trade and economic cooperation, FTAs and PTAs, bilateral investment promotion agreements) and monitors and studies the conditions and various phenomena in bilateral trade cooperation.Read More »

Third Party Funding in International Arbitration: Problems & Recent Developments

By Shivansh Jolly

With the passing of time, the concept of third party funding in international arbitration has started attracting attention, and has consequently attained considerable significance. The concept involves providing monetary assistance by a third party (stranger to arbitration) to one of the parties to the concerned arbitration, generally supported by a formalized agreement laying down the terms and conditions governing the assistance provided.[1] Such agreements may entail a pre-decided incentive for a funder in the instance of a favourable award with respect to the party funded, such as remuneration to the extent of a fixed percentage of the award. The need for third party funding usually arises in cases where either the Complainant or the Respondent is financially incapable of bearing the expenses arising out of the dispute, more importantly, the costs following a possible adverse award. Another possible scenario which may invite third party funding may be an instance where a favourable result of a dispute benefits the funder in question, either directly or indirectly.Read More »