International Investment Law: Reconciling Policy and Principle by Surya P. SUBEDI. Oxford, Great Britain and New York, USA: Hart Publishing, 2020. 4th edition. xxxvi + 326 pp. Paperback: £41.99; eBook (PDF): £37.79. doi: unknown

Author(s):  
Nartnirun JUNNGAM
Author(s):  
S. R. Subramanian

The ICSID Convention provides for one of the strongest regimes for enforcement of its awards. Consequently, finality of the ICSID awards was rarely disputed in the past. However, recently, there has been a growing sense of investment awards being subjected to challenge by domestic courts. Moreover, this phenomenon is not only confined to investment disputes arising under the ICSID Convention and even amongst non-ICSID states also, taking advantage of the greater space granted to the national law under the New York Convention, the investment treaty awards are subject to unwarranted challenges at the stage of enforcement of awards. It is in this background, taking India as an example, the paper aims to find out how the international investment awards will be enforced in India and what major legal challenges that it will encounter during the process of recognition and enforcement. For this purpose, the paper closely reviews a number of recent and significant Indian rulings on arbitration and notes that the enforcement of such awards faces a number of challenges including interpretative hurdles, multiple jurisdictional claims and parallel proceedings and extreme judicial delays. It finally suggests that the creation of an exclusive legal mechanism for the enforcement of investment arbitral awards will remove the legal impediments associated with the enforcement of the arbitral awards and bring about the desired changes in the expeditious disposal of enforcement cases.


2020 ◽  
Vol 28 (4) ◽  
pp. 596-611
Author(s):  
Nitish Monebhurrun

With international investment law as the background to this study, the present article examines how the full protection and security standard can be construed from the perspective of developing states hosting foreign investments. The research delves into classical public international law to argue that the diligentia quam in suis rule can be used as a means of interpretation to strike a balance between foreign investors’ and developing states’ interests when construing the full protection and security standard. The rule provides that any expected due diligence from the state party is necessarily of a subjective nature. This means that developing host states must deploy their best efforts to offer maximum protection to foreign investors not on an in abstracto basis but as per their local means and capacity. Accordingly, the standard is presented as an adaptable and flexible one which moulds its contours as per the level of development of the host state. Such flexibility does not imply condoning states’ abuse and negligence. The article explains how the diligentia quam in suis rule enables a conciliation between the full protection and security standard and the host state's level of development while rationalising the standard's application to developing nations.


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