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ABSTRACT
In December 2015, India released a new model bilateral investment treaty. The development of such models typically serves four purposes: facilitating negotiations with partner states; constituting state practice which may contribute to the formation of customary international law; providing interpretive guidance to tribunals; and promoting uniformity in international law. However, despite some innovative provisions, the new Indian model displays a lack of drafting clarity in some respects, and a degree of redundancy in other respects. These deficiencies make it doubtful whether the model can achieve any of its purposes. India appears to remain committed to (a reformed version of) the investment treaty system, not least on behalf of the burgeoning numbers of outward Indian investors. The model’s failings are therefore all the more acute, and pose challenges for India’s ambitions to play a greater role in the system, while also potentially representing a missed opportunity for India’s broader role in the “Asian century”.
Acknowledgment
The authors thank Jürgen Kurtz and the anonymous referees for their useful comments.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 P Ranjan, ‘India and Bilateral Investment Treaties – A Changing Landscape’ (2014) 29 ICSID Rev 419, 421.
2 Department of Economic Affairs, Ministry of Finance, Government of India, Transforming the International Investment Agreement Regime: The Indian Experience (Presentation at UNCTAD Expert Meeting, 25 February 2015), <unctad-worldinvestmentforum.org/wp-content/uploads/2015/03/India_side-event-Wednesday_model-agreements.pdf> 17 June 2017.
3 P Ranjan, ‘Investment Protection and Host State’s Right to Regulate in Indian Model Bilateral Investment Treaty 2016: Lessons for Asian Countries’ <ssrn.com/abstract=2888731> 2.
4 White Industries Australia Ltd v India (UNCITRAL), Final Award, 30 November 2011 [16.1.1].
5 Ranjan (n 1) 421.
6 260th Law Commission of India Report, Analysis of the 2015 Draft Model Indian Bilateral Investment Treaty (2015) <lawcommissionofindia.nic.in/reports/Report260.pdf> 16 June 2017 (Report 260).
7 Available at <dea.gov.in/sites/default/files/ModelTextIndia_BIT_0.pdf>.
8 Statement by Minister of Commerce, Bilateral Investment Treaties, Lok Sabha (25 July 2016) <www.dipp.gov.in/sites/default/files/lu1290.pdf> 17 June 2017.
9 The exact date of termination for each BIT varies depending on the notice period required under that BIT and the date of notification given by India. The Netherlands–India BIT terminated on 30 November 2016, for instance, while the Australia–India BIT terminated on 22 March 2017.
10 See, e.g. Department of Economic Affairs (n 2) (discussing the Draft Model); South Centre, “Approaches by Developing Countries to Reforming Investment Rules; South-South Dialogue and Cooperation”, 20 July 2016, 8 (remarks by Indian official CC Sarkar).
11 See, e.g. G Hanessian and K Duggal, ‘The Final 2015 Indian Model BIT: Is This the Change the World Wishes to See?’ (2017) 32 ICSID Rev 216; Ranjan (n 3); P Ranjan and P Anand, ‘The 2016 Indian Model Bilateral Investment Treaty: A Critical Deconstruction’ <ssrn.com/abstract=2946041>; M Thadikkaran, ‘Model Text for the Indian Bilateral Investment Treaty: An Analysis’ (2015) 8 NUJS L Rev 31; and the contributions in K Singh and B Ilge (eds), Rethinking Bilateral Investment Treaties: Critical Issues and Policy Choices (Both Ends/Madhyam/SOMO 2016).
12 C Brown (ed), Commentaries on Selected Model Investment Treaties (OUP 2013) 2, 11; S Schill, The Multilateralization of International Investment Law (CUP 2009) 89–98; P Dumberry, The Formation and Identification of Rules of Customary International Law in International Investment Law (CUP 2016) 251–57.
13 Press Information Bureau, Government of India, ‘Model Text for the Indian Bilateral Investment Treaty’ (16 December 2015) <pib.nic.in/newsite/PrintRelease.aspx?relid=133411>.
14 Brown (n 12).
15 Dumberry (n 12) 253–57.
16 W Alschner and D Skougarevskiy, ‘Mapping the Universe of International Investment Agreements’ (2016) 19 JIEL 561; W Alschner, ‘The New Gold Standard? Empirically Situating the Trans-Pacific Partnership in the Investment Treaty Universe’ (2016) 17 JWIT 339.
17 See, e.g. the diffusion of the interpretive annex on expropriation, moving from US treaties to many others including India’s agreements with Singapore and China: S Spears, ‘Making Way for the Public Interest in International Investment Agreements’ in C Brown and K Miles (eds), Evolution in Investment Treaty Law and Arbitration (CUP 2011) 278.
18 A further factor in a model BIT’s success is undoubtedly the economic clout of the state proposing it. Regardless of any weaknesses in the US model BIT, for instance, its success (in terms of influence on partner states) is likely due to those states’ desire to benefit from US economic power. India, by contrast, may not (yet) have this luxury, necessitating a closer examination of the Indian Model’s weaknesses.
19 The MFN clause was at the heart of India’s loss in the White Industries case: see White Industries (n 4) [11.2]. Similarly, the arbitrator conflict provisions may have been drafted in response to India’s experiences with arbitrator challenges in the CC/Devas case: CC/Devas (Mauritius) Ltd v India (PCA Case No 2013–09), Decision on the Respondent’s Challenge to the Hon Marc Lalonde as Presiding Arbitrator and Prof Francisco Orrego Vicuña as Co-Arbitrator, 30 September 2013.
20 Article 10.
21 Article 15.1.
22 A Newcombe and L Paradell, Law and Practice of Investment Treaties: Standards of Treatment (Kluwer 2009) 64.
23 These provisions appeared to be directly inspired by the 2005 Model Investment Agreement produced by the International Institute for Sustainable Development (IISD), <www.iisd.org/pdf/2005/investment_model_int_agreement.pdf>. Compare Articles 9.1 and 9.4 of the Draft Model with Articles 13(A) and (B) of the IISD Model. See also Report 260 (n 6) [4.1.3].
24 Article 11.
25 Article 12.
26 Other treaties only require investments to comply with domestic law at the time of their establishment in the host state. See J Hepburn, ‘In Accordance with Which Host State Laws? Restoring the “Defence” of Investor Illegality in Investment Arbitration’ (2014) 5 JIDS 531.
27 In favour, see e.g. P Dumberry, ‘State of Confusion: The Doctrine of “Clean Hands” in Investment Arbitration After the Yukos Awards’ (2016) 17 JWIT 229. Against, see e.g. Yukos Universal Ltd v Russia (UNCITRAL), PCA Case No AA 228, Final Award, 18 July 2014 [1358]–[1359]. Others conclude that “[l]earned opinion is divided”: S Schwebel, “Clean Hands, Principle”, Max Planck Encyclopaedia of Public International Law (March 2013).
28 B Sabahi, Compensation and Restitution in Investor-State Arbitration (OUP 2011) 186.
29 Such as, perhaps, where environmental harm triggered the state’s intervention against an investment.
30 International Law Commission, ‘Articles on Responsibility of States for Internationally Wrongful Acts’ in Yearbook of the International Law Commission, 2001, Volume II, UN Doc A/CN.4/SER.A/2001/Add.1, Article 39.
31 Ibid Article 55.
32 Writers have questioned whether standard CIL principles on reparations are appropriate for investor-state claims: see, e.g. R Goodman and Y Parkhomenko, ‘Does the Chorzow Factory Standard Apply in Investment Arbitration? A Contextual Reappraisal’ (2017) 32 ICSID Rev 304.
33 A Reinisch, ‘Legality of Expropriations’ in A Reinisch (ed), Standards of Investment Protection (OUP 2008) 186. None of the model BITs reviewed in Brown (n 12) omits the non-discrimination condition.
34 Reinisch (n 33).
35 Thadikkaran (n 11) 38.
36 UNCTAD, Expropriation (UNCTAD/DIAE/IA/2011/7, July 2012) 32.
37 See the discussion in M Paparinskis, The International Minimum Standard and Fair and Equitable Treatment (OUP 2013) 245–47.
38 South Centre (n 2).
39 See, e.g. Hanessian and Duggal (n 11) 217–18. As Hanessian and Duggal note, the Model’s definition of “investment” has also adopted the criteria from Salini v Morocco.
40 Tribunals interpreting denial of benefits clauses usually focus on the investor’s ultimate ownership: AMTO v Ukraine (SCC Case No 080/2005), Final Award, 26 March 2008 [67]; Ulysseas v Ecuador (UNCITRAL), Interim Award, 28 September 2010 [170]. However, the presence of a third-country company anywhere in the chain of ownership might enable the state to invoke denial of benefits, even with ultimate home state ownership or control: see Pac Rim Cayman LLC v El Salvador (ICSID Case No ARB/09/12), Decision on the Respondent’s Jurisdictional Objections, 1 June 2012 [4.79]–[4.82].
41 D Gaukrodger, ‘Investment Treaties and Shareholder Claims: Analysis of Treaty Practice’ (OECD Working Papers on International Investment, 2014/03) <www.oecd.org/daf/inv/investment-policy/WP-2014-3.pdf>.
42 See, e.g. CMS Gas Transmission Company v Argentina (ICSID Case No ARB/01/8), Decision of the Tribunal on Objections to Jurisdiction, 17 July 2003 [47]–[65].
43 See, e.g. C McLachlan, L Shore and M Weiniger, International Investment Arbitration: Substantive Principles (OUP 2007) ch 4.
44 Enron Corporation and Ponderosa Assets LP v Argentina (ICSID Case No ARB/01/3), Decision on Jurisdiction, 14 January 2004 [52].
45 South Centre (n 2) [54].
46 Report 260 observed that it was anyway illegal for foreigners to own more than 50% of an Indian company, making the draft Model’s definition meaningless: (n 6) [2.2.3]. However, more recent reforms have removed this limit in certain sectors: BBC News, “India Overhauls Foreign Ownership Rules” (20 June 2016) <www.bbc.com/news/business-36575755>.
47 Strangely, under Article 1.3, an enterprise’s assets can also include “shares … of the enterprise”. Since this is distinguished from “shares … in another enterprise”, it appears to mean “shares in the enterprise itself”. However, in many jurisdictions, including India, it is illegal for companies to own shares in themselves: see Trevor v Whitworth (1887) 12 App Cas 409; Companies Act 2013 ss67–68 (India); Corporations Act 2011 s259A (Australia). The reference to “shares … of the enterprise” is therefore probably meaningless.
48 Article 1.4(i).
49 See also R Dolzer and C Schreuer, Principles of International Investment Law (2nd edn, OUP 2012) 60.
50 International Monetary Fund, “Balance of Payments and International Investment Position Manual” <www.imf.org/external/pubs/ft/bop/2007/pdf/chap6.pdf>.
51 See n 46.
52 Interhandel (Switzerland v USA) (Preliminary Objections) [1959] ICJ Rep 6, 27; Elettronica Sicula SpA (ELSI) (USA v Italy) [1989] ICJ Rep 15 [50].
53 ILC (n 30) Article 44(b).
54 C Amerasinghe, Local Remedies in International Law (CUP 2004) 3.
55 European Convention on Human Rights, Article 35; American Convention on Human Rights, Art 46(1)(a); International Covenant on Civil and Political Rights, Art 41(1)(c).
56 M Brauch, ‘Exhaustion of Local Remedies in International Investment Law’ (IISD Best Practices Series January 2017) <www.iisd.org/sites/default/files/publications/best-practices-exhaustion-local-remedies-law-investment-en.pdf> 7.
57 Ibid 9–11.
58 Article 15.2.
59 See Ambiente Ufficio SPA v Argentina (ICSID Case No ARB/08/9), Decision on Jurisdiction and Admissibility, 8 February 2013 [601]–[602]; Brauch (n 57) 2. Recent media discussion of the Indian Model has confused a requirement of full exhaustion with the actual requirement of partial, time-limited exhaustion: see J Hepburn, ‘Indian BIT Negotiator Clarifies Country’s Stance on Exhaustion of Remedies, and Offers Update on Status of Country’s Revamp of Bilateral Investment Treaties’ (Investment Arbitration Reporter 31 March 2017) <tinyurl.com/mqgnaew>.
60 L Sohn and R Baxter, Convention on the International Responsibility of States for Injuries to Aliens (1961) 164; Phosphates in Morocco (Italy v France) (Preliminary Objections) PCIJ Series A/B No 74, 28.
61 ILC, ‘Draft Articles on Diplomatic Protection with commentaries’ in Yearbook of the ILC, 2006, Volume II, A/CN.4/SER.A/2006/Add.1 (Part 2), commentary to Article 39 [5].
62 Article 15.1.
63 ILC (n 62), Article 15(a).
64 Ibid, commentary to Article 15(a) [4].
65 See Ambiente, where decisions of the Argentinian Supreme Court rendered matters associated with Argentina’s sovereign debt restructuring non-justiciable. Ambiente (n 60) [616]–[620]. The test is incorporated from ILC (n 62), Article 15(a).
66 Vidhi Doshi, “India’s Long Wait for Justice: 27m Court Cases Trapped in Legal Logjam” (The Guardian, 6 May 2016) <www.theguardian.com/world/2016/may/05/indias-long-wait-for-justice-27-million-court-cases-trapped-in-a-legal-logjam>.
67 Abaclat v Argentina (ICSID Case No ARB/07/5), Decision on Jurisdiction and Admissibility, 4 August 2011 [583]; Urbaser v Argentina (ICSID Case No ARB/07/26), Decision on Jurisdiction, 19 December 2012 [194], [202]–[203].
68 Ambiente (n 60) [604]–[605].
69 P Thakur, ‘HCs Taking 3 Years on Average to Decide Cases: Study’ (The Times of India, 22 March 2016) <timesofindia.indiatimes.com/india/HCs-taking-3-years-on-average-to-decide-cases-Study/articleshow/51503719.cms>. Similarly, average times to enforce contracts in Indian courts have been calculated as 1420 days (3.9 years): World Bank, Doing Business 2017: Equal Opportunity for All (World Bank 2017) <www.doingbusiness.org/reports/global-reports/doing-business-2017>.
70 White Industries (n 4) was based on a nine-year delay by Indian courts to decide an application for set-aside of an ICC award.
71 Interhandel (n 53) 27; Ambiente (n 60) [605].
72 If full ELR were nevertheless achieved within five years, the natural interpretation of Article 15.2 is that its requirements would be taken to be satisfied when the final remedy (e.g. a Supreme Court ruling) was issued. The investor would then be required to institute arbitration within one year of this date, under Article 15.5(ii). cf Hanessian and Duggal (n 11) 222–23.
73 Article 15.1, second paragraph.
74 Other commentators have also viewed it this way: Hanessian and Duggal (n 11) 221; Ranjan and Anand (n 11) 42.
75 The ICJ in ELSI observed that the claimant is not required to present its claim to domestic courts with arguments suited to an international tribunal; instead, “it is sufficient if the essence of the claim has been brought before the competent [domestic] tribunals”: ELSI (n 53) [59]. Article 15.1 already confirms this by requiring investors to submit domestic claims only “in respect of the same measure or similar factual matters” for which a BIT breach is claimed.
76 See the NAFTA jurisprudence discussed in M Kinnear, A Bjorklund and J Hannaford, Investment Disputes under NAFTA: An Annotated Guide to NAFTA Chapter 11 (Kluwer 2006), Article 1121.
77 NAFTA, Article 1121(1)(b). See also: Canadian Model FIPA, Article 26(1)(e); US Model BIT (2012), Article 26(2)(b).
78 L Caplan and J Sharpe in Brown (n 12) 829.
79 Waste Management v Mexico (ICSID Case No ARB(AF)/00/3), Mexico’s Preliminary Objection concerning the Previous Proceedings: Decision of the Tribunal, 26 June 2002 [30]; B Klafter, ‘International Commercial Arbitration as Appellate Review: NAFTA’s Chapter 11, Exhaustion of Local Remedies and Res Judicata’ (2006) 12 UC Davis J Int’l L & Pol’y 409, 415.
80 Waste Management (n 80) [31]. Nevertheless, even on this interpretation, Article 15.5’s reference to waiving rights to “initiate” domestic proceedings will have limited utility, since domestic proceedings were necessarily initiated five years earlier.
81 Articles 21.1 and 21.4.
82 CAFTA-DR, Article 10.20.4; CETA, Articles 8.32–8.33; EU–Singapore FTA, Articles 9.20–9.21; ICSID Arbitration Rules, Article 41(5).
83 Trans-Global Petroleum v Jordan (ICSID Case No ARB/07/25), The Tribunal’s Decision on the Respondent’s Objection under Rule 41(5) of the ICSID Arbitration Rules, 12 May 2008 [78].
84 CETA, Article 8.33; EU–Singapore FTA, Article 9.21. This phrase is, in turn, borrowed from the CAFTA-DR, Article 10.20.4.
85 Pac Rim (n 40), Decision on the Respondent’s Preliminary Objections under CAFTA Articles 10.20.4 and 10.20.5, 2 August 2010 [108]; Renco Group v Peru (ICSID Case No UNCT/13/1), Decision as to the Scope of the Respondent’s Preliminary Objections under Article 10.20.4, 18 December 2014 [185].
86 R Gardiner, Treaty Interpretation (2nd ed, OUP 2015) 200; Plama v Bulgaria (ICSID Case ARB/03/24), Decision on Jurisdiction, 8 February 2005 [147].
87 Renco (n 86) [191].
88 Ibid [200].
89 Brandes Investment Partners v Venezuela (ICSID Case No ARB/08/3) Decision on the Respondent’s Objection under Article 41(5) of the ICSID Arbitration Rules, 2 February 2009 [71]; PNG Sustainable Development v Papua New Guinea (ICSID Case No. ARB/13/33) Decision on Respondent’s Objections under Rule 41(5), 28 October 2014 [92]–[99].
90 Report 260 (n 6) [5.3.1].
91 Report 260 appears to take a similar view: ibid [5.3.4].
92 See, e.g. ADF Group Inc v USA (ICSID Case No ARB(AF)/00/1), Award, 9 January 2003 [190]; Eli Lilly v Canada (UNCT/14/2), Final Award, 16 March 2017 [224].
93 See, e.g. Helnan v Egypt (ICSID Case No ARB/05/19) Award, 3 July 2008 [106]; US – Section 301 Trade Act (22 December 2009) WT/DS152/R [7.19]; Kononov v Latvia App no 36376/04 (ECtHR, 17 May 2010) [189]; Ahmadou Sadio Diallo (Guinea v Congo) [2010] ICJ Rep 639 [70] (ICJ).
94 J Hepburn, Domestic Law in International Investment Arbitration (OUP 2017) 133–34.
95 The Constitution of India, Article 253; Jolly George Vergese v Bank of Cochin, 1980 AIR 470; State of West Bengal v Kesoram Industries (2004) 10 SCC 201.
96 Report 260 (n 6) [5.3.2]. Report 260 considers a similar issue in relation to a different clause in the draft Model (Article 14.2(ii)(a), which was deleted in the Model), but ignores the possibility of a domestic court ruling on an international law question. The Report surprisingly accepts the Draft Model equivalent to the Model’s Article 13.5(i), finding it “in consonance with ordinarily accepted tribunal jurisdictions”: ibid [5.3.4].
97 cf JA Rivas in Brown (n 12) 235.
98 J Hepburn, ‘CETA’s New Domestic Law Clause’ (EJIL:Talk!, 17 March 2016) <www.ejiltalk.org/cetas-new-domestic-law-clause/>. On incidental questions, see, e.g. Ampal-American Israel Corp v Egypt (ICSID Case No ARB/12/11), Decision on Liability and Heads of Loss, 21 February 2017 [81].
99 M Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff 2009) 410; A Orakhelashvili, ‘Article 30’ in O Corten and P Klein (eds), The Vienna Convention on the Law of Treaties: A Commentary (OUP 2011) vol I, 774.
100 Orakhelashvili (n 100) 764, 774.
101 Article 23.3 explicitly gives power to tribunals to apply the customary rules of treaty interpretation.
102 See also Article 32.3.
103 Report 260 recommended replacing the reference to the VCLT with a reference to “rules of customary international law”: (n 6) [7.1.2]. This recommendation was apparently not accepted, but in any case the recommended clause would be as redundant as the original.
104 See, e.g. C Foster, ‘Burden of Proof in International Courts and Tribunals’ (2010) 29 Australian YBIL 27, 35.
105 Agility for Public Warehousing Company KSC v Pakistan (ICSID Case No ARB/11/8).
106 LE Peterson, ‘After Obtaining a Jurisdictional Victory in 2013, Investor Later Concedes that Pakistani Investment Treaty is Not in Force and Drops its Arbitration’ (Investment Arbitration Reporter, 11 August 2016) <tinyurl.com/zmtpjsu>.
107 See, e.g. Glamis Gold v USA (UNCITRAL) Award, 8 June 2009 [600]–[601]; Cargill v Mexico (ICSID Case No ARB(AF)/05/2) Award, 18 September 2009 [273]; Eli Lilly v Canada (UNCT/14/2), Submission of the United States of America, 18 March 2016 [16]–[17].
108 This view is supported in Department of Economic Affairs, Ministry of Finance, Government of India, Consolidated – Interpretative Statements, <indiainbusiness.nic.in/newdesign/upload/Consolidated_Interpretive-Statement.pdf> 17 June 2017, footnote 3.
109 L Johnson, L Sachs and J Coleman, ‘International Investment Agreements, 2014: A Review of Trends and New Approaches’ in A Bjorklund (ed), Yearbook on International Investment Law & Policy 2014–2015 (OUP 2016) 29.
110 India–UK BIT, Article 9(3)(a).
111 See also Article 17.2.
112 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (adopted 18 March 1965, entered into force 14 October 1966) 575 UNTS 15, Article 25(1).
113 Report 260 (n 6) [5.1.2].
114 ICSID Convention (n 113), Article 25(1).
115 Article 16.1(b). The ICSID adopted these rules for the exact purpose that it could administer arbitrations between parties one of which is not a contracting state or a national of a contracting state to the ICSID Convention.
116 See, e.g. K Gordon and J Pohl, ‘Investment Treaties over Time: Treaty Practice and Interpretation in a Changing World’ (OECD Working Papers on International Investment, 2015/02) <www.oecd.org/investment/investment-policy/WP-2015-02.pdf> 25.
117 J Dahlquist, ‘Brazil and India Conclude Bilateral Investment Treaty’ (Investment Arbitration Reporter, 28 November 2016) <tinyurl.com/j9ng9o3>; Press Information Bureau, Government of India, ‘Cabinet Approves Bilateral Investment Treaty between India and Cambodia to Boost Investment’ (27 July 2016) <pib.nic.in/newsite/PrintRelease.aspx?relid=147849>. The treaty with Brazil has not yet been ratified. The treaty with Cambodia has been initialled but not yet signed by either party: Hepburn (n 60).
118 S Watson, ‘Bumps in the Road for India-US Trade’ (Livemint, 15 March 2017) <www.livemint.com/Opinion/jCOfYtaeoNwunvvYKEx3RO/Bumps-in-the-road-for-IndiaUS-trade.html>; P Sahu, ‘India Fast-Tracks BIT Talks; Cambodia First, US Deal May Take Time’ (Financial Express, 21 July 2016) <www.financialexpress.com/economy/india-fast-tracks-bit-talks-cambodia-first-us-deal-may-take-time/323831/>; P Ranjan, ‘Bit of a Bumpy Ride’ (The Hindu, 2 June 2016) <www.thehindu.com/opinion/op-ed/Bit-of-a-bumpy-ride/article14378406.ece>.
119 UNCTAD, ‘The Impact of International Investment Agreements on Foreign Direct Investment: An Overview of Empirical Studies 1998–2014’ (IIA Issues Note, September 2014) <investmentpolicyhub.unctad.org/Upload/Documents/unctad-web-diae-pcb-2014-Sep%2024.pdf>.
120 S Dave, ‘India One of the Fastest Destinations for Investments: KPMG’ (The Economic Times, 11 March 2017) <economictimes.indiatimes.com/news/economy/policy/india-one-of-the-fastest-destinations-for-investments-kpmg/articleshow/57595492.cms>.
121 See, e.g. M Sornarajah, Resistance and Change in the International Law on Foreign Investment (CUP 2015).
122 AR Mishra, ‘India to Trade Partners: Sign New Bilateral Investment Treaties by 31 March’ (Livemint, 11 January 2017) <www.livemint.com/Politics/8IRq2uiGhDAxjyiO2lEJ3K/India-asks-trade-partners-to-sign-new-BIT-pact.html>.
123 The UK is reportedly favourable to a (post-Brexit) agreement with India: K Singh and B Ilge, ‘India Overhauls its Investment Treaty Regime’ (beyondbrics, 15 July 2016) <blogs.ft.com/beyond-brics/2016/07/15/india-overhauls-its-investment-treaty-regime/>. Canada is also seeking an agreement, but reportedly wants concessions on certain elements of the Model: A Sen, ‘FinMin to Look Into Changes Sought by Canada in Draft Bilateral Treaty’ (The Hindu BusinessLine, 26 April 2017) <www.thehindubusinessline.com/economy/policy/finmin-to-look-into-changes-sought-by-canada-in-draft-bilateral-treaty/article9665816.ece>.
124 Flemingo DutyFree Shop Private Ltd v Poland (UNCITRAL), Award, 12 August 2016; Indian Metals and Ferro Alloys Ltd v Indonesia (UNCITRAL) (pending); Spentex BV v Uzbekistan (ICSID Case No ARB/13/26), Award, 27 December 2016 (Indian-owned Dutch claimant).
125 S Chesterman, ‘Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures’ (2017) 27 EJIL 945, 969.
126 P Ranjan, ‘A BIT of an Overreaction’ (Financial Express, 4 April 2015) <www.financialexpress.com/opinion/column-a-bit-of-an-overreaction/60348/>.