The Role of Arbitration in response to Increasing Foreign Direct Investment In India- Reverence and Lessons from the Dubai International Financial Centre (DIFC)

By Digvijay Dam*

Hon’ble PM Narendra Modi’s vision for the “Make in India” campaign is gaining an impressive momentum in the international fora, which is evident from the fact that India has received around $19.78 billion of foreign investment after the NDA government came into power. However, where there are investments, there are bound to occur some inevitable disputes, which are needed to be resolved in a swift and an amicable way. Here comes the need for a robust arbitration mechanism to deal with such kinds of disputes, as the parties generally tend to avoid litigation in courts. Post the enactment of the Indian Arbitration and the Conciliation Act 1996; India has not been a favorable destination for arbitration, due to a plethora of problems for eg. the issue of enforcement of foreign arbitral awards in India (White Industries Australia Limited v. Republic of India), the issue of interference of the Indian Judiciary in arbitrations seated outside India (Bharat Aluminum v. Kaiser Aluminum Technical Services[1] reconsidering the decision Read More »

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The Philip Morris Case and the Right to Regulate (Legislate)

By Olga S. Shaposhnikova, PhD Candidate, International Arbitration*

Introduction

TOBACCO-2-articleLargeOn December 17, 2015, the arbitral tribunal of Prof. Gabrielle Kaufmann-Kohler, Prof. Don McRae and Prof. Karl-Heinz Boeckstiegel dismissed the claim filed in 2011 by Philip Morris Asia Limited (“PM Asia”) against the Commonwealth of Australia (“Australia”) under the Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments, 1993 (the “BIT”)[1]. This dispute – the first investor-state dispute brought against Australia – was caused by Australia’s introduction of the Tobacco Plain Packaging Act 2011, legislation developed in line with the World Health Organization’s Framework Convention on Tobacco Control, 2003, adopted by 180 States. However, Philip Morris argued in this case[2] that Read More »

Corruption as a defense in International Investment Arbitration

By Shivansh Jolly*

The Issue

The developing jurisprudence in international investment arbitration has lately been confronted with the question of whether claims arising from contracts tainted with a blot of corruption in the international fora can be validly upheld. A classic example to describe such an instance would be where a private party in one country obtains a contract for infrastructural development in another country while illegally colluding with a minister of the host State which would prove decisive in the said contract being awarded to the concerned private party. With the contract being awarded and necessary investments being made in the host State, relationship between the parties reach a roadblock due to a possible reluctance of a new government regime to honour the terms of the tainted agreement in existence.

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Government of India is inviting Proposals for engagement of Law Firms for Investor-State Disputes

By Sarthak Malhotra

The Government of India is inviting foreign and domestic law firms for the purpose of representing it in disputes under the BITs and other investment protection agreements. For this purpose, the firms are requested to submit a technical and financial proposal before 5:00 PM, February 19, 2016.

india_bit_claims_against_IndiaAccording to the Request for Proposal Document, the scope of work for such law firms would include advising the Government on legal issues arising out of the arbitration proceedings and prepare strategies in whatever capacity chosen by the Government.Read More »

Iraq accedes to ICSID: Signed and Ratified

by Sujoy Sur

Iraq has finally acceded to ICSID, and the sigh of finality is resounding because it is the first globally recognised and followed international arbitration framework to which it has acceded to. The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) was signed today on behalf of the Republic of Iraq by H.E. Dr. Sami Raouf Al-Araji, Chairman of the National Investment Commission.[1]

ICSID Convention Signing_Iraq.jpg Read More »

The Bits of Bilateral Arbitration Treaties (BATs):: Reflections from Investor-State Dispute Settlement (ISDS)

By Sarthak Malhotra

Mr. Gary Born proposed the idea of a ‘Bilateral Arbitration Treaty’ in his keynote speech on the occasion of the Kiev Arbitration Days titled as “BITs, BATs and Buts”. He proposed that the states could establish a regime whereby the commercial contractual disputes between parties of each state would be submitted to arbitration by default.

Gary Born_Bilateral Arbitration Treaty(BAT)_Criticism_Summary
Courtesy: http://www.legalservice.co.uk

Consent in Investment Arbitration and BITs

Like any other form of arbitration, Investment Arbitration is typically based on the consent of the host state and the investor. However, there are some peculiarities involved which need attention. Read More »

BREAKING: Trans Pacific Partnership (TPP) deal negotiations conclude. Another win for Investment Arbitration.

By Sarthak Malhotra

The negotiations for the Trans Pacific Partnership Agreement (TPP), a mega Free Trade Agreement between Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam have concluded on 4th October, 2015. Leaders_of_TPP_member_states (Summary and Analysis of TPP Deal) ilsquare.wordpress.comRead More »