scholarly journals Bilateral Investment Treaty Negotiations between India and U.S: Problems and Prospects

2016 ◽  
Vol 4 (1) ◽  
Author(s):  
Rajesh Kumar
Keyword(s):  
Prime Minister ◽  
Foreign Investors ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
Treaty Negotiations ◽  
Technology Control ◽  
The Relationship ◽  
Control Regime ◽  
Australian Company ◽  
Investment Treaty Arbitration

<p><em>Relationship between U.S. and India is at the best phase, especially after former unequivocal support in NSG (Nuclear Supply Group) and helping inclusion in MTCR (Missile Technology Control Regime). The relationship between two oldest and biggest democracies has matured under the headship of Mr. Barak Obama as President and Mr. Nardendra Modi as prime minister. In the recent visit of Indian prime minister, the warm gesture shown by U.S. congress members have further cemented the strength of tie up between two nations. However, despite great chemistry between two nation and its leaders from last many years, both have failed to enter into Bilateral Investment Treaty. India is having Bilateral Investment treaty with more than 80 countries including U.K. and Russia, of which 72 treaties are operational. <a title="" href="file:///C:/Users/SPub/Desktop/July%202016%20IRA%20Issues/IRAJEMS/IRAJEMS1.docx#_ftn1">[1]</a>  U.S. is having Bilateral Investment treaties with more than 46  countries including Russia and Bangladesh.<a title="" href="file:///C:/Users/SPub/Desktop/July%202016%20IRA%20Issues/IRAJEMS/IRAJEMS1.docx#_ftn2">[2]</a> Since 2008, the two countries have been engaged in sporadic discussions to conclude the Investment treaty. Negotiations on its wording, based on each country’s revised model treaty texts, will begin soon. Both the leaders Indian Prime Minister Narendra Modi and U.S President Barack Obama affirmed their mutual commitment to facilitating increased bilateral investment flows and fostering an open and predictable climate for investment many a times , But consensus has not been reached till today on certain term and conditions.   In the absence of BIT , the rights of investors of both the countries are at the stake. Further, MFN or nationality treatment clause cannot be invoked or granted in the event of any regulatory or other action. Obligations imposed by BIT to protect interest of foreign investors are absent. Further, after losing its first Investment Treaty Arbitration (ITA) claim in 2012 against White Industries, an Australian company and pending 17 cases, India has recently adopted new BIT in 2015 . It also has reflections of pending claims of Vodafone and other cases involving Intellectual Property Rights( Hereinafter refereed as IPR) and the cases of compulsory licences.   </em></p><div><br clear="all" /><hr align="left" size="1" width="33%" /><div><p><em><a title="" href="file:///C:/Users/SPub/Desktop/July%202016%20IRA%20Issues/IRAJEMS/IRAJEMS1.docx#_ftnref1">[1]</a> Details Avaialble at <a href="http://www.finmin.nic.in/bipa/bipa_index.asp">http://www.finmin.nic.in/bipa/bipa_index.asp</a>.</em></p></div><div><p><em><a title="" href="file:///C:/Users/SPub/Desktop/July%202016%20IRA%20Issues/IRAJEMS/IRAJEMS1.docx#_ftnref2">[2]</a> Details Avialable at <a href="http://www.state.gov/e/eb/ifd/bit/117402.htm">http://www.state.gov/e/eb/ifd/bit/117402.htm</a>.</em></p></div></div>

scholarly journals Let Us Not Forget about the Role of Domestic Courts in Settling Investor-State Disputes

2020 ◽  
Vol 18 (3) ◽  
pp. 389-415
Author(s):  
Szilárd Gáspár-Szilágyi
Keyword(s):  
Subject Matter ◽  
Working Group ◽  
Reform Process ◽  
Foreign Investors ◽  
Host State ◽  
Investment Treaty ◽  
Domestic Courts ◽  
The Relationship ◽  
Investment Treaty Arbitration

Abstract This overview illustrates that there is a gap in our knowledge of how domestic courts handle investor-State disputes. As it turns out, some foreign investors use the domestic courts of the host State prior to initiating investment treaty arbitration. Subject matter-wise, these cases are very diverse and not all of them are initiated by investors against the host State. Moreover, in the four countries analysed, investors often appealed to the highest courts of the land, but they lost more cases than they won. These findings should help UNCITRAL Working Group III conceptualize the meaning of “investor-State dispute” and the relationship between domestic and international methods of ISDS. This overview concludes by inviting further empirical research to understand how domestic courts handle investor-State disputes. This in turn can help us develop normative arguments as to why domestic courts should be included in the reform process.

Part II Ambit of Protection, 4 Parallel Proceedings

2017 ◽  
Author(s):  
McLachlan Campbell ◽  
Shore Laurence ◽  
Weiniger Matthew
Keyword(s):  
Dispute Resolution ◽  
State Courts ◽  
Breach Of Contract ◽  
The Road ◽  
Res Judicata ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
The Impact ◽  
The Relationship ◽  
Investment Treaty Arbitration

Chapter 4 deals with a complex set of problems that have arisen in determining the relationship between parallel claims in investment arbitration and other forms of dispute resolution, including proceedings in host State courts. Five issues which arbitral tribunals have had to confront in considering the impact of other forms of dispute resolution upon their jurisdiction are explored in particular: (1) the distinction between breach of contract and breach of treaty; (2) election, waiver, and ‘fork in the road’; (3) prior resort to local remedies; (4) internationalised contract claims and ‘umbrella clauses’; and (5) parallel treaty arbitration. The chapter considers the extent to which the general doctrines of lis pendens, res judicata, election, waiver, and abuse of process are capable of application in investment treaty arbitration.

Illegal Investments in Investment Treaty Arbitration

2012 ◽  
Vol 11 (2) ◽  
pp. 281-323 ◽  
Author(s):  
Stephan W. Schill
Keyword(s):  
International Investment ◽  
Foreign Investor ◽  
Considerable Potential ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
The Impact ◽  
The Relationship ◽  
Domestic Law ◽  
Investment Treaty Arbitration

Abstract Investment treaty tribunals on numerous occasions have had to deal with the impact of breaches of domestic law by a foreign investor on the investment’s protection under an international investment treaty. In this context, tribunals had to interpret different “in accordance with host State law”-clauses contained in investment treaties, but also dealt with the effect of illegality in the absence of such clauses. The present article traces this increasingly complex jurisprudence and frames it as an issue of the relationship between domestic law and international investment law. Although different approaches exist, most importantly as to the effect of domestic illegality on the jurisdiction of investment treaty tribunals, the article suggests that there is considerable potential for convergence in arbitral jurisprudence, thus unveiling the contours of a doctrinal structure for dealing with illegal investments in international investment law and arbitration.

scholarly journals Notion of investment under the ICSID Arbitration: A jurisdictional dilemma between subjective and objective approaches

2017 ◽  
Vol 1 (1) ◽  
pp. 120-142
Author(s):  
Nasiruddeen Muhammad
Keyword(s):  
Dispute Settlement ◽  
Controversial Issues ◽  
Dispute Settlement Mechanism ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
Definition Of ◽  
Settlement Mechanism ◽  
Exact Definition ◽  
Investment Treaty Arbitration

The notion of Investment is one of the most controversial issues trailing the dispute settlement mechanism of International Center for Settlement of Investment Dispute (ICSID). One notable issue surrounding the controversy is identifying an exact definition of investment for the purposes of ICSID Jurisdiction. While some tribunals tend to give effect to the agreement of the parties contained in their contracts or the underlying bilateral investment treaty as giving rise to the ICSID jurisdiction by consent, others tend to subject parties consent into a filtering mechanism based on a certain developed criteria. The aim of the paper is to add clarity to the corpus juris of investment treaty arbitration and provide guidance to the  investment treaty tribunals regarding the determination of notion of investment.  In doing so, the paper typifies the problem with the notable case of MHS v Malaysia. It then analyzes the two approaches from subjective and objective perspectives. The paper concludes with the proposition that ICSID notion of investment may not necessary lie with either of the two approaches. Keyywords : Investment, treaties, jurisdiction

Striking the Right Balance Between the Interests of the Foreign Investors and the Host State – A Case Study of the Tanzania-Germany BIT 50 Years After Its Conclusion

2017 ◽  
Vol 25 (1) ◽  
pp. 1-19
Author(s):  
Tomasz P. Milej
Keyword(s):  
Foreign Investments ◽  
Foreign Investors ◽  
Host State ◽  
Investment Treaty ◽  
General Feeling ◽  
Policy Objectives ◽  
The Right ◽  
Development Objectives ◽  
The Relationship

Fifty years ago, Tanzania and Germany concluded a bilateral investment treaty (BIT). The main features of this BIT differ from what is common today. The article examines the adequacy of the Treaty's stipulations against the backdrop of the controversies which the conclusion of the BITs has recently sparked in developing states and in Tanzania in particular. It discusses the nexus between the conclusion of the BITs and the inflow of foreign investments. As there is a general feeling among Tanzanian scholars that the BITs are too favourable to investors at the expense of local firms and legitimate policy objectives of the host state, various claims have been made with respect to the content of the investment treaties. Taking the Tanzania-Germany BIT as a case study, the article analyses these claims in the context of a global debate on the relationship between the need for the protection of foreign investors and sustainable development objectives. Finally, the future of the Tanzania-Germany BIT is discussed in the light of the post-Lisbon EU approach to the investment policy.

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