[This article was originally written in 2016 and presented by the author at the National Conference on Arbitration on 26-27th August 2016 at ILS Law College, Pune]
India’s economic policy was built on the foundations of socialist fervor. It maintained an aversive stand towards foreign investment. Consequently, India did not venture into international investment protection arrangements until the 1990s; when its prevailing economic policy became dangerously unsustainable. The Indian government then brought a sea change to its economic regime in 1991 and adopted the tenets of liberalization. Having opened its gates to foreign direct investment, India also demonstrated a positive approach towards international investment agreements (IIAs) and started entering into Bilateral Investment Promotion Agreements (BIPAs) towards the end of 1990s.
Bilateral investment-treaties (BITs) are international legal instruments executed between sovereign states which lay down reciprocal obligations upon contracting parties to afford adequate protection to foreign investment in their respective territories. Traditional features of BITs include inter alia a guarantee of fair and equitable treatment to foreign investors and their investments, protection against nationalization/expropriation of foreign investment, an assurance of free transfer of capital and a mechanism for settlement of disputes between contracting parties and for those between a contracting party and a foreign investor[1] [“Investor-State Disputes/ISDS”].
Merely entering into BITs does not necessarily lead to an increase in FDI for contracting parties[2]. That said, the UNCTAD has observed that “although most BITs do not change the key economic determinants of FDI, they improve several policy and institutional determinants, and thereby increase the likelihood that developing countries engaged in BIT programmes will receive more FDI”.[3] For instance, FDI flows in India increased from USD 4,029 million in 2000-2001 to USD 31,853 million in 2014, reaching a staggering USD 46,556 million in 2011-2012.[4] Unsurprisingly, the number of BITs in the world increased from 500 in the 1990s to more than 3200 BITs by the end of 2014[5]. UNCTAD has reported an increase in Investor-State Disputes from 50 in 1996 to 608 by the end of 2014.
The Sovereign Blow
India suffered its first investment arbitration award under the in White Industries v. India. It was a stunner to the unsuspecting Indian government. The ad-hoc UNCITRAL tribunal used the ‘Most-Favored Nation’ [MFN] clause in the India-Australia BIT to import the ‘effective means standard’ from the India-Kuwait BIT, and hold India liable for its excruciatingly slow judiciary. Shortly thereafter, India started receiving similar requests for arbitration under other international investment instruments. As a reactionary measure, the Indian government initiated termination of around 57 BITs and vowed a complete revamp of its existing international investment regime[6].
India also commenced the process of reviewing its Model Bilateral Investment Treaty (BIT); which would replace the 2003 Model BIT as the fundamental text for negotiating investment treaties in the future. The Draft Model Bilateral Investment Treaty (“Model BIT”) was released on 24th March 2015 for public consideration and comment. The Model BIT received mixed reviews from proponents, academicians and stakeholders.
An efficacious mechanism for redressal of investor-state disputes remains one of the primary objectives of entering into BITs[7]. However, the Model BIT is overly restrictive in its approach towards treatment, protection and over investor-state dispute settlement in relation to foreign investment. Importantly, the Model BIT expressly reserves the Host State’s power to regulate in public interest[8]. Furthermore, the Model BIT also requires the aggrieved investor to first exhaust all local legal remedies before invoking Investor-State Arbitration under the Model BIT.
India is already facing BIT claims from the likes of Vodafone BV[9], Sistema[10], Nokia[11] and Cairn Energy[12]. It therefore would be prudent on part of the Government to negotiate a reasonable stance on the standard of treatment and Investor State Dispute Settlement mechanism in future BITs. This paper shall focus mainly on the construction of the Model BIT clauses providing for treatment of foreign investment and exhaustion of local remedies as a prerequisite to invoking the investor-state dispute settlement mechanism. It is argued that the aforementioned clauses should be constructed in such a way as to maintain a fair balance between the interest of the contracting parties and as also between those of the one contracting party and an investor of the other contracting party.
General Scope of BIT and Exceptions to Application
At the very outset, the Model BIT states, under Article 2, that its applicability is limited only to investments made after the entry into force of the Treaty. It also clarifies that none of its provisions will be applicable either to claims arising out of events which occurred before the Treaty came into force or to any pre-investment activity, i.e. to those activities which were undertaken by the investor prior to the complete establishment of the investment in accordance with the laws of the contracting party. Lastly, the Model BIT also excludes from its applicability inter alia all measures taken by the local government and all measures regarding taxation.
Interestingly, the Model BIT also excludes measures regarding issuance of compulsory licenses or revocation, or any other limitation created by a contracting party in relation to intellectual property rights. However, this exclusion is limited only to the extent that measures so taken are in compliance with the contracting party’s international obligation under the WTO Agreement; which by extension includes other WTO administered agreements such as the Agreement on the Trade Related Aspects of Intellectual Property (“the TRIPS Agreement”). This means that regardless of the above exclusionary clause, the Treaty would be applicable to measures which are in violation of the provisions of the TRIPS Agreement. It is unclear if an arbitral tribunal constituted under the Treaty has the authority to decide issues in relation to the violation of the TRIPS Agreement. This is because Article 23 of the WTO Agreement[13] suggests that the Dispute Settlement Mechanism (DSM), which is set up by the WTO, has exclusive jurisdiction over disputes arising out of all WTO Agreements. At present, this issue is undecided. If the WTO does have exclusive jurisdiction, the BIT Tribunal will be bound under Article 14.1 of the Model BIT to either stay its proceedings or ensure that the DSM’s decision on the matter is duly taken into account while deciding a dispute in relation to the same factual and legal matrices.
Removal of the MFN Clause
The Model BIT has consciously done away with a Most-Favored Nation (“MFN”) clause in the aftermath of the ad-hoc tribunal’s award in White Industries vs. The Republic of India[14]. In White Industries, the ad-hoc tribunal held the Republic of India liable for breach of the ‘effective means standard’[15] for the inability of Indian courts to enforce an ICC award in favor of White Industries. The tribunal imported the 2001 India-Kuwait BIT pursuant to the MFN clause[16] in the India-Australia BIT. In order to avoid such an importation in the future, the Article 4 of the Model BIT provides only for ‘National Treatment’ to foreign investors. Article 4 ensures that foreign investment shall be accorded the no less favorable treatment than is accorded, in like circumstances, to domestic investments with respect to the management, conduct, operation, sale or other disposition of investments in its territory[17]. Furthermore, it also binds sub-national governments, i.e. Governments of States or Union Territories, to adhere to the aforementioned standard of national treatment.
The Model BIT clarifies in a footnote that the term ‘in like circumstances’ depends on the totality of circumstances, including whether the relevant treatment distinguishes between investors or investments on the basis of legitimate regulatory objectives. This term was previously interpreted by an ad-hoc tribunal in SD Myers Inc v Government of Canada[18] in the context of Article 1102 of the North American Free Trade Agreement[19] – which is similar to Article 4 of the Model BIT.
While interpreting the term ‘in like circumstances’, the SD Myers tribunal held that national treatment encompasses both de jure and de facto discrimination, that is, a measure which is on its face discriminatory, as well as in its practical effect. Therefore, the tribunal found that while the ban on export of certain hazardous waste was not de jure discriminatory, whether by domestic or foreign investors, was nonetheless de facto discriminatory and thus in breach of the national treatment obligation, as it ‘created a disproportionate benefit for nationals over non-nationals’[20]. The SD Myers tribunal also applied principles of customary international law to in arriving at its decision[21].
Therefore, if a future Tribunal is required to interpret Article 4, it is highly likely to decide in favor of the investor in case an act of the Republic of India is favorable to its nationals (as opposed to domestic investors) at the cost of discriminating against foreign investors. It is true that the MFN is prone to misuse, as was the case in White Industries. Future instances of misuse can be remedied thorough careful and foresighted construction of an MFN clause; e.g. by expressly providing in the Model BIT that that “a Tribunal shall not under any circumstances import substantive provisions from other international agreements into the Treaty”.
That said, a complete removal of the MFN protection is unwarranted. Such omission would give leeway to contracting parties to incorporate such clauses in other Treaties which are either more beneficial or more detrimental to the interests of an investor of another country. For instance, an Australian investor will have no recourse under this Treaty if the Indian government provides higher subsidy to an American investor.
Standard of Treatment
It is customary for most IIAs to address the nature of treatment which will be ensured towards foreign investments. Almost all of India’s present BITs carry a clause for ensuring a ‘fair and equitable treatment’ (“FET”) to foreign investments. However, the Model BIT has omitted the FET standard.
The guarantee of such treatment has been observed to foster the “promotion of the investment process”[22] it secures investors with a non-contingent standard[23]. The tribunal in Azurix v. Argentina interpreted the term ‘fair and equitable’ in the United States-Argentina BIT to mean treatment that is “just,” “even-handed,” “unbiased,” and “legitimate”. It further stated that the States have agreed upon a certain treatment in the [US-Argentina] BIT with the view ‘to stimulate the flow of private capital and the economic development of parties[24].
In keeping with this principle, it is desirable for India to ensure the incorporation of a clearly defined clause for the standard of treatment to be afforded to investors. A well-defined and robust clause to this effect will also aid a tribunal in judiciously interpreting the required treatment into the subject matter of an investor-state dispute. What is the ideal standard of treatment? Should India stand by the FET standard? Or should it be replaced with the negative objective standard the minimum standard of treatment in international law? There is no true consensus among scholars, commentators and/or tribunals with respect to the exact meaning and scope of the FET standard.
According to one faction of commentators, the FET clause requires the arbitral tribunal to “assess whether the Host state acted with respect to the investor and its investment in a manner that comports with the normal business understanding of fairness”[25]. Some commentators have maintained that the widespread practice of a treaty-based FET standard has not yet resulted into binding customary law[26]. The FET standard has been criticized further for being vague enough to bestow excessive interpretative power upon arbitral tribunals[27]. The OECD’s Working Paper on the FET standard points out that “a number of governments seem to be concerned that, the less guidance is provided for arbitrators, the more discretion is involved and the closer the process resembles decisions ex aequo et bono, i.e. based on the arbitrators’ notions of ‘fairness ’ and ‘equity’” [28]. These are legitimate concerns which should be addressed by India before entering into any future BITs.
Minimum Standard of Treatment
Article 3.1 of the Model BIT refers to the interpretation of denial of justice in the context of customary international law. This act hints towards the adoption and application of the minimum standard of treatment developed under customary international law.
The Minimum Standard was conceived by states to ensure civilized treatment and justice to aliens or non-nationals, whether individual or otherwise, by the Host State. The Encyclopedia of Public International Law defines it as a concept which affirms the creation of rights defined by international law which may be asserted against States by or on behalf of aliens; including their rights fair judicial proceedings, to decent treatment if imprisoned, to protection against disorders, violence, and against deportation in abusive ways, and to the enjoyment of their property unless taken for a public purpose with fair compensation[29]. This principle is somewhat similar to the common law requirement of natural justice and equity, which includes inter alia the right to be heard.
In the investment arbitration landscape, the international minimum standard of treatment (the “Minimum Standard”) has been incorporated in Article 1105 of the North American Free Trade Agreement (“NAFTA”). It reads as follows:
“Article 1105: Minimum Standard of Treatment
- Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security.
…”
The Minimum Standard under Article 1105 was first interpreted in the Neer Case[30]; wherein the NAFTA tribunal stated that a violation of the Minimum Standard can only occur when the action on part of the Host State amounts to an outrage, a bad faith, a willful neglect of duty or to an insufficiency that every reasonable and impartial man would recognize its insufficiency[31]. On 31st July 2001, the US Federal Trade Commission (USFTC) issued an interpretive note on Article 1105 of the NAFTA[32]. Among other things, the USFTC stated that:
“2. The concepts of “fair and equitable treatment” and “full protection and security” do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens.”[33]
Charles Brower opined that Article 1105 of the NAFTA has, without exaggeration, become the alpha and the omega of investment under Chapter 11 of the NAFTA[34]. This position has been adopted by the US in its 2012 Model BIT[35]. Additionally, Article 5 of the US 2012 Model BIT further clarifies that “fair and equitable treatment” includes the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with the principle of due process embodied in the principal legal systems of the world”.
Therefore, in keeping with these developments, India should not entirely refrain from mentioning the standard of treatment. Instead, it should incorporate the Minimum Standard in unequivocal terms and well-defined boundaries in order to prevent the creation of any substantive rights[36], with a few exceptions, under Article 3 of the Model BIT.
Denial of Justice et. al.
The Model BIT has rightly provided for protection against denial of justice expressly under customary international law and not under the FET standard. A claim for denial of justice may succeed only in cases where there is a violation of some general principles of international law; such as those of natural justice. The Model BIT also ensures full protection and security towards the physical security of investors and their investments. However, the investor under this BIT is assured of no protection from any arbitrary measures adopted by the host state.
Interestingly, it is often the manner of enacting regulation that results into a violation of a fair and equitable treatment. Such were the circumstances in BIT claims against the Argentine Republic in Enron[37], LG&E[38], CMS[39] and National Grid[40].
In the early 1990s, Argentina introduced reforms to incentivize foreign investment in the gas sector. The Argentine peso was fixed at par with the US dollar and investors were guaranteed inter alia that gas tariff system will not face a price freeze. This model soon became unsustainable; and Argentina was forced to enact an emergency law in 2002 to revoke the peso-dollar valuation in the wake of a huge economic crisis.
A large number of investors initiated ISDS proceedings against Argentina for this ‘arbitrary’ revocation of a guarantee. Most tribunals held Argentina liable for the breach of the FET standard despite its major economic crisis. While the Tribunal in Enron did not grant specific performance to continue to the license, it did observe that it had the power to do so[41]. Such measures, i.e. of granting specific performance, should be expressly discouraged by a developing country like India which has lower stability among governments. This can be primarily done by limiting the standard of treatment and lowering the [legitimate] expectations of investors.
Arbitrariness and Legitimate Expectations
In addition to a protection against denial of justice, the Model BIT also provides for protection of investors and investments against a (i) fundamental breach of due process; (ii) targeted discrimination on manifestly unjust grounds and (iii) manifestly abusive treatment. The latter two protections are as meaningless as they are restrictive for broadly two reasons.
Firstly, it is an unreasonable burden for the Claimant to prove that whilst being discriminatory, the impugned actions were targeted towards her, and that such violation of was also manifest. Furthermore, such requirements will grant excessive powers to the tribunal as neither term has been defined or clarified. This is not only likely to unreasonably favor the Respondent-State, but also capable of being backfired if the tribunal puts a very low threshold for satisfaction of these requirements.
Secondly, the extent of abuse and arbitrary treatment required to create a justiciable right under Article 3.1 is much more than that required under even the minimum standard of treatment. The investor will be entitled to claim any relief for arbitrary behavior only if it has been mistreated to the highest extent. Such a clause can hardly be viewed as fair or non-arbitrary. It may also be argued that the insertion of such restrictive clauses itself constitutes arbitrary behavior on part of the Contracting Parties. The latter two clauses are slight modifications of their predecessors in the 2015 Draft Model BIT.
The National Association of Manufacturers (NAM), in their submissions on the Draft Model BIT, had stated that the Draft Model BIT is much weaker than other BITs and investment instruments that India itself has adopted. Further, NAM also stated that the Draft Model BIT “will not provide even a basic level of protections, access or enforceability for existing or future investors. In a world where there is substantial competition for investment flows to promote economic growth, India’s proposed movement backwards in investment treaty practice sends precisely the wrong signal to manufacturers in the United States and other investors. Rather than seeking out India, investors should be wary that India is not even willing to maintain basic rule of law standards from its earlier investment treaty practice.”
That said; the Model BIT is bereft of two highly important features of the standard of treatment: protection against arbitrariness. This is clarified with the help of the following illustration:
It can be said an all investors legitimately and reasonably expect that a manufacturing license will be granted to them on fulfillment of certain preconditions. However, a sub-national government of India refuses to this license to an eligible protected foreign investor without providing any reasons. Now, Article 3 in its present form is applicable inter alia to denial of justice under customary international law; which is applicable in this case only when an investor is debarred or debilitated by the host state to pursue any action in India. However, the investor will be left without any remedy for the arbitrary act on the host state. Therefore, the Model BIT should also expressly include the principles of non-arbitrariness, non-discrimination and legitimate expectation within the standard of treatment.
Requirement of Exhaustion of Legal Remedies
Article 15 of the BIT requires that the investor exhaust all of its judicial and administrative remedies before invoking the ISDS mechanism. Such a claim must be raised before the relevant State authority within a span of one year from the cause of action. Interestingly, this Article requires the investor to, after having diligently pursued domestic remedies; establish that the continued pursuit of domestic relief will be futile.
Among a pool of 102 countries, India has been ranked 88th for access to civil justice by the World Justice Project Report on the Rule of Law® (2015).[42] Presently, approximately 3,00,00,000 cases are pending in Indian courts with some pending for upto 20 years[43]. Among these, around 62,000 are pending in the Apex Court of India[44]. This is despite the fact the Indian government provided for special tribunals, such as the Company Law Board (or the National Company Appellate Board) and the SEBI Tribunal, for speedy disposal of cases. In such circumstances, a foreign investor’s pursuit of exhausting Indian ‘local remedies’ is likely to result into a denial of justice. It should therefore be removed.
As a matter of fact, the Tribunal in White Industries held India liable for the ‘effective means standard’ for the precise reason that the Indian judiciary made an unreasonable delay to enforce the ICC award passed in favor of the Claimant of the said case. It is therefore more than apparent that the propensity of the Indian judiciary to delay any justice to future investors is high enough to cause a denial of justice even under the principles of customary international law. It is strongly advised that the clause of exhaustion of local remedies should be removed, as it has the potential to cause a breach of the standard of treatment assured to an investor.
In the alternative, each Contracting Party may set up a special national tribunal for the settlement of disputes related to foreign investment. The said tribunal should function in the same manner as an arbitral tribunal. Parties to the said dispute may appoint to the tribunal lawyers or retired judges who have specialized knowledge in the field of international investment arbitration. States may amend their laws to make provision for such an appointment even for foreign lawyers and jurists. This tribunal should be empowered to interpret and apply the BIT in question and give a ruling and grant appropriate relief as well.
Such a setup has been previously suggested by Mr. Hildegard Rondón De Sansó in the backdrop of the incessant ISDS claims against South-American countries[45]. In order to ensure speedy disposal of proceedings, an award or order must be appealable on to the Apex Court of the Host State. A similar provision has been made for awards passed by the National Green Tribunal[46]. Investors should be bound to exhaust this remedy before approaching a tribunal under Article 15 of the BIT.
Conclusion and Recommendations
As stated earlier, the assertion that International Investment Agreements (IIAs) are successful in increasing FDI inflow is disputed. IIAs, especially BITs, have been criticized for turning into tools for investors to attain leverage over the Host State. The insertion of an umbrella clause to elevate contractual claims to a treaty breach is one of the rather apparent maladies. Even the ISDS mechanism, a primary function of an IIA, has been thwarted as being unfair and oppressive to States. Some of the reasons for this are:
- Most IIAs do not provide for obligations on the claimant (and therefore no provision of counter claims).
- The trend of tribunals to hold States liable for breach of the FET standard even when the impugned acts were in furtherance of exercising their sovereign regulatory powers; with a few exceptions[47].
- The sheer amount in damages awarded[48], and the costs involved, is a huge potential burden on the Respondent-State.
That said; the practice of entering into BITs and the provision of an ISDS settlement are still viable to maintain and attract FDI inflow. The said mechanism has been heavily criticized by the European Commission, the ECJ[49] and others[50] in the context of Intra-EU BITs.
However, the European Union will nevertheless be retaining the ISDS mechanism in its future BITs with Canada and India. Therefore, instead of entirely doing away with BITs and its ISDS mechanism, States should look towards carefully constructing the treaties in order to maintain the balance of interests. The following are some recommendations towards future BITs; especially for Indian BITs:
- If inserted, the FET Standard should be defined as exhaustively as possible. Exceptions to the application of the standard should be chalked out.
- There should be a saving clause for use of regulatory powers; preferably as an exception to the FET clause. States must be free to regulate sovereign affairs without the fear of facing an expensive investment arbitration claim. However, the regulation in itself should not be arbitrary or discriminatory.
- The defense of ‘necessity’ should be given a definite shape and boundaries of application. Tribunals should assess impugned actions of the State within such ambit.
- The Respondent-State must be empowered to raise counter-claims on the basis of violation of any obligations and on part of the Claimant[51]. Furthermore, the Respondent-State must have equitable remedies such as challenging the bona fides of the Claimant. For this purpose, the BIT may provide for a stage for determining a prima facie breach of the BIT.
- Loser shall pay all costs of arbitration proceedings. For instance, Norway’s Model BIT requires the ‘unsuccessful party is to bear the costs of arbitration’[52]
—
[1] See, Dolzer, Rudolf, and Christoph Schreuer, Principles of International Investment Law (Oxford 2012, Oxford University Press) p. 13.
[2] John Anthony Van Duzer, Penelope Simons, Graham Mayeda, “Integrating Sustainable Development Into International Investment Agreements”, Commonwealth Secretariat, p. 13.
[3] see The Role of International Investment Agreements in Attracting Foreign Direct Investment to Developing Countries, UNCTAD/DIAE/IA/2009/5 (United Nations Publication, New York and Geneva, 2009) at p.xiii
[4] Fact Sheet on Foreign Direct Investment from April 2000 to December 2014. http://dipp.nic.in/English/Publications/FDI_Statistics/2014/india_FDI_December2014 .pdf.
[5] See, Prabhash, Ranjan, India and Bilateral Investment Treaties: From Rejection to Embracement to Hesitance?
(December 30, 2015). Available at
SSRN: http://ssrn.com/abstract=2728840 orhttp://dx.doi.org/10.2139/ssrn.2728840.
[6]http://thewire.in/52022/remodeling-indias-investment-treaty-regime/
[7] See P. 45, Para 1.31, Andrew Newcombe, Lluís Paradell, Law and Practice of Investment Treaties, Standards of Treatment, Kluwer Law International, Wolters Kluwer..
[8] Article 2.4 of the Model BIT
[9] Vodafone Serves Notice Against Indian Government Under International Bilateral Investment Treaty
17 April 2012
http://www.vodafone.com/content/index/media/vodafone-group-releases/2012/bit.html
[10] http://www.businesstoday.in/sectors/telecom/2g-sistema-shyam-mts/story/22790.html
[11] http://articles.economictimes.indiatimes.com/2015-06-17/news/63540426_1_ceo-rajeev-suri-telecom-equipment-maker-nokia-barry-french
[12] Nokia keen to settle Rs 20,000-crore tax dispute without arbitration
[13] https://www.wto.org/english/tratop_e/dispu_e/dsu_e.htm#23
[14] In The Matter Of an UNCITRAL Arbitration in Singapore under the India-Australia BIT between White Industries Australia Limited and The Republic Of India. The Tribunal consisted of The Hon. Charles N. Brower, Christopher Lau SC J. and William Rowley QC as the Chairman.
The Final Award can be accessed at: http://www.italaw.com/sites/default/files/case-documents/ita0906.pdf
[15] White Industries Australia Limited and The Republic Of India, Para 11.2.1; Article 4(5) of the 2001 India-Kuwait BIT
[16] Article 4(2) of the India-Australian BIT
[17] Article 4.1 of the Model BIT
[18] 40 ILM (2001) 1408; The Ad-Hoc Tribunal was set up in accordance with UNCITRAL Rules.
[19] Article 1102: National Treatment
The North American Free Trade Agreement (NAFTA) can be accessed at: http://www.italaw.com/sites/default/files/laws/italaw6187%2833%29_0.pdf
[20] P. 16, Part I: Fundamental Issues, Chapter 6: Trade and Investment, ed. Peter T. Muchlinski, Federico Ortino, Christoph Schreuer, “The Oxford Handbook of International Investment Law’, OUP, June 2008
[21] Art 102(2) of the NAFTA provides as follows: ‘The Parties shall interpret and apply the provisions of this Agreement in the light of its objectives set out in paragraph 1 and in accordance with applicable rules of international law’. Art 1131(1) of the NAFTA instructs the tribunal ‘to decide the issues in dispute in accordance with [the] Agreement and applicable rules of international law’.
[22] United Mexican States v. Metalclad Corp., 2001 BCSC 664 (Supreme Court of British Columbia).
[23] See Stephen Vasciannie, The Fair and Equitable Treatment Standard in International Investment Law and Practice, 1999 Brit Y.B. of Int’l Law 99, 105 (2000)
[24] Para 360, Azurix v. Argentina, ICSID Case No. ARB/01/12 (U.S.-Argentina BIT Final Award of July 14, 2006)
[25] Stephen Vasciannie, The Fair and Equitable Treatment Standard in International
Investment Law and Practice, 1999 Brit Y.B. of Int’l Law 99, 103 (2000)
[26] Para 187, ADF Group Inc. v. U.S., ICSID Case No. ARB(AF)/00/1 (NAFTA, Award of Jan. 9, 2003), In the said case, the Tribunal observed that the Investor failed to how that the [FET] requirement has been brought into the corpus of present day customary law.
[27]Christopher F. Dugan, Don Wallace, Jr., Noah Rubins, Borzu Sabahi, Chapter XVII: “Fair and Equitable Treatment” and “Full Protection and Security”, Investor-State Arbitration, p. 8.
[28] Organization for Economic Cooperation and Development (OECD), Fair and Equitable Standard in International Investment Law, 8 note 3 (Working Papers on International Investment, 2004/3, 2004)
Can be accessed at: http://dx.doi.org/10.1787/675702255435
[29] Rudolf Bernhardt, “Encyclopedia of Public International Law” Vol. 3, Page 408-409,
[30] LFH Neer and Pauline (USA) v. United Mexican States (NAFTA)
The Award can be accessed at: http://legal.un.org/riaa/cases/vol_IV/60-66.pdf
[31] LFH Neer and Pauline (USA) v. United Mexican States (NAFTA)
The Award can be accessed at: http://legal.un.org/riaa/cases/vol_IV/60-66.pdf
[32] NAFTA Free Trade Commission (FTC) Notes of Interpretation (July 31, 2001). Can be accessed at: http://www.dfait-maeci.gc.ca/tna-nac/NAFTA-Interpr-en.asp.
[33] NAFTA Free Trade Commission (FTC) Notes of Interpretation (July 31, 2001) Can be accessed at: http://www.dfait-maeci.gc.ca/tna-nac/NAFTA-Interpr-en.asp.
[34] Charles H. Brower, Fair and Equitable Treatment under NAFTA’s Investment Chapter, 96 Am. Soc’y Int’l L. Proc. 9 2002
[35] See Article 5 of the US 2012 Model BIT.
https://ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeting.pdf
[36] See Article 5.2 of the US Model BIT 2012.
[37] Enron Corporation and Ponderosa Assets, L.P. v. Argentine Republic, ICSID Case No. ARB/01/3.
The Award can be accessed at: http://www.italaw.com/documents/Enron-Award.pdf
[38] LG&E Energy Corp., LG&E Capital Corp., and LG&E International, Inc .v. Argentine Republic, ICSID Case No. ARB/02/1
The Award can be accessed at: http://www.italaw.com/sites/default/files/case-documents/ita0460.pdf
[39]CMS Gas Transmission Company v. The Republic of Argentina, ICSID Case No. ARB/01/8
The Award can be accessed at: http://www.italaw.com/sites/default/files/case-documents/ita0184.pdf
[40] National Grid plc v. The Argentine Republic, UNCITRAL
The Award can be accessed at: http://www.italaw.com/sites/default/files/case-documents/ita0555.pdf
[41] Para 80-81, Award on Jurisdiction in Enron Corporation and Ponderosa Assets, L.P. v. Argentine Republic, ICSID Case No. ARB/01/3
Can be accessed at: http://www.italaw.com/documents/Enron-Jurisdiction.pdf
[42] See, World Justice Project Rule of Law Index®, 2015, p. 30.
The Report has taken into consideration whether civil justice systems are accessible and affordable, free of discrimination, corruption, and improper influence by public officials and has examined whether court proceedings are conducted without unreasonable delays, and if decisions are enforced effectively. It has also measured the accessibility, impartiality, and effectiveness of alternative dispute resolution mechanisms.
The Report can be accessed at: http://worldjusticeproject.org/sites/default/files/roli_2015_0.pdf
[43] http://indianexpress.com/article/india/india-others/nearly-three-crore-cases-pending-cji-says-trial-to-end-within-5-years/
[44] http://supremecourtofindia.nic.in/p_stat/pm01032015.pdf
[45]Hildegard Rondón De Sansó, Proposed Changes to the Investment Dispute-Resolution System: A South American Perspective. Can be accessed at: https://www.iisd.org/itn/2014/01/19/proposed-changes-to-the-investment-dispute-resolution-system-a-south-american-perspective/#_ftnref2
[46] Section 22, National Green Tribunal Act, 2010.
[47] See AES Summit Generation Limited and AES-Tisza Erömü Kft v. The Republic of Hungary, ICSID Case No. ARB/07/22; Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/8 http://www.italaw.com/cases/
[48] The largest Arbitration Awards in history: Three Majority shareholders in Yukos awarded total damages of over $50bn from the Russian Federation. Can be accessed at:
[49] See Opinion 1/09, Creation of a Unified Patent Litigation 2011 E.C.R. I-0137, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009CV0001:EN:PDF ECR I-0137
[50] See Remarks of Commissioner De Gucht, EUR. PARL. DEB. (339) (May 22, 2013), available at http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20130522&secondRef=ITEM-019&language=EN&ring=A7-2013-0124
[51] See, for more information, Jean E. Kalicki, “Counterclaims by states in investment arbitration”, Investment Treaty News, January 14, 2013
Can be accessed at:https://www.iisd.org/itn/2013/01/14/counterclaims-by-states-in-investmentarbitration-2/
[52]Article 17.3 of the Norway Model BIT (2007)
It can be accessed at: http://investmentpolicyhub.unctad.org/Download/TreatyFile/2873
Koinos 