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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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 »

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 »

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.

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 »