Article from: TDM 2 (2018), in Editorial
With a prediction of 6.5% GDP growth for the 2018 fiscal year, India is now the 7th largest world economic power, just abreast of the UK (6th) and France (5th). Despite the immediate effects of the November 2016 demonetization campaign, business activity is strong hence placing the country at the centre of a dynamic South Asia. Great challenges nevertheless remain. At a time of internationalization and with a population of 1.3 billion which diversity is often celebrated, India also faces tremendous constraints in terms of environmental and social sustainability and inclusiveness. Paradoxically, inequalities are at their highest levels in 92 years that is since the tax system has been introduced. India is now one of the main countries with the highest increase in top 1% concentration over the past 30 years that is precisely the period of reforms and opening up to the world. Economic growth has not yet enable India to win the war against poverty and this will undoubtedly impact the country's future performances and stability. While uncertain indeed, India's glory - to paraphrase Jean Dreze and Amartya Sen - is deeply interrogating many of our conceptual assumptions .
It is so an ideal time to reflect on one of the most salient features of the recent legal - and economic - reforms of the new Indian era: the settlement of investment and commercial disputes. This TDM Special Issue on international commercial and investment disputes in and with India charts exhaustively the past and recent legislative and regulatory reforms initiated by the Indian government, including the 2015 Bilateral Investment Treaty (BIT) model, the 2015 amendments to the 1996 Arbitration Act and the 2013 amendments to Section 135 of the Companies Act on Corporate Social Responsibility (CSR). It also discusses recent developments in the broader dispute resolution arena, regional and international negotiations involving India, the legal profession's response to these developments, and civil society's comments on the same.
Although a relative latecomer on the BIT scene with its first treaty signed with the UK in 1994, India has progressively entered into a large number of agreements with developed and developing countries all over the world. It restricted itself to BITs until 2004, but then commenced regional negotiations and entered into free-trade agreements (FTAs) with countries such as Japan, Korea and Malaysia. More Treaties with Investment Provisions (TIPs) are expected at the bilateral or mega-regional levels.
Interestingly, India has adopted original normative positions in its investment agreements. It has taken an opposite stance to the majority of developed and developing countries as far as certain standards of treatment are concerned - notably the National Treatment and Most Favoured Nation Treatment (MFN) standards. While India generally granted these two standards of treatment (as well as Fair and Equitable Treatment (FET)) in most of its 1990s and 2000s treaties, its recent attempts show some suspicion towards MFN. Arguably, this is a direct result of India's first condemnation in the now famous White Industries case.
As a result, a draft BIT model was unveiled in 2015. After intense public debate, and recommendations by the Law Commission of India, the new model BIT was eventually adopted. It replaced the 2003 model, which served as the basis for most of the 82 Indian BITs.
The 2015 model BIT is a curious instrument at the intersection of various approaches to investment law (liberal and statist). Despite many commendable improvements including CSR related provisions, the model may not provide sufficient protection for Indian businesses going global. Amongst the debatable new provisions are: the stricter definition of "investment", the exclusion of taxation, the absence of MFN and the dispute settlement provisions, which inter alia require the exhaustion of local remedies by the investor before it can proceed to international arbitration.
In parallel, the Indian government, with the support of the Judiciary and the legal profession, is promoting ambitious reforms for the country to become a world-class arbitration hub. Towards this end, the Arbitration Act of 1996 was amended recently to address arguably arbitration unfriendly dicta. However, some argue that these amendments go too far, for example, when requiring an arbitration to conclude within 12 months from constitution of the tribunal. In addition, the Mumbai International Arbitration Centre has been set up in an effort to promote the use of institutional arbitration in the country. However, uncertainties remain with respect to the fast-growing Indian arbitration jurisprudence, which may lack coherence and consistency.
The 22 contributions to this TDM Special Issue provide an accurate and updated account of fascinating conceptual and practical evolutions, which already impact the world of international dispute resolution far beyond the borders of India.
While a patchwork of topics and ideas is first observed, several underlying themes are identifiable. A number of contributions interrogate the much-debated 2015 Model BIT in rigorous and novel manner while also putting India's investment treaty policy in a historical and conceptual perspective:
- Matei Purice and Sandra Azima revisit the changing landscape of investment treaty protection in India by studying India's foreign direct investment policies, India's current framework of IIAs and their use by foreign investors, and the impact of the Model BIT on future renegotiations of India's IIAs.
- Eric Leikin, Stuti Gadodia and Charles Loudon trace the evolution of investor obligations from the first Draft Model BIT to the Final Model BIT. They conclude that the Final Model BIT provides the state with less leverage than the Draft Model BIT and India's other currently operable treaties.
- Epaminontas E. Triantafilou & Jagdish Menezes look at the other side of the coin i.e. the effect of the 2015 Model BIT on Indian investors abroad. They postulate that the Model may create problems for these investors and propose a few solutions.
Other authors have addressed certain fundamental conceptual and procedural issues in the Model:
- Prabhash Ranjan analyses the procedural transparency in the 2015 Model BIT under three heads - public access to case documents; public access to hearings; and submission of amicus curiae briefs to ensure greater public participation. He concludes that the while procedural transparency has been enhanced, the Model BIT still falls short in some respects.
- Rohini Singh Sisodia and Ramya Raman discuss the evolution of the dispute settlement mechanism in the 2015 Model BIT and conclude that the Model has integrated a number of innovative provisions that aim at maintaining a balance between the investors' rights whilst preserving the right of the State to regulate in public interest. For the authors, the Model BIT shows a shift in focus from investment promotion to investment protection for sustainable development.
- Arthad Kurlekar & Leah Thomas analyze the same dispute resolution provisions, and come to a different conclusion - that the provisions reflect a rather protectionist approach. The authors believe that India must look beyond a reactionary approach to unfavourable awards against it to establish an investor-friendly regulatory framework.
Yet some contributors have also analysed India's reluctance to ratify the ICSID Convention and examined the impact of this political decision:
- Shreyas Jayasimha, Radha Raghavan and Rohan Tigadi review the main features of the ICSID Convention and consider India's reluctance to ratify the Convention. They outline the issues that ought to be considered while deliberating whether India should ratify the Convention.
- James J. Nedumpara and Aditya Laddha also address a similar issue in questioning whether India should revisit its position on joining the ICSID Convention. The authors trace ICSID decisions and practices over the last four decades and conclude that India should reconsider its position, especially given the absence of other credible forums for investor-state dispute settlement.
Looking ahead, Ondrej Svoboda discusses the current status of EU-India investment treaty negotiations and their prospects in an era of backlash and reform. He concludes that the positions of these parties are not entirely irreconcilable.
One of the many merits of this Special is that issues are not studied in isolation but rather as part of a common conceptual framework in which public and private law meet and dispute settlement is seen as a common field of expertise. As mentioned above, developments in investment arbitration have been matched (if not exceeded) by developments in the commercial arbitration. Several authors have critically reviewed these developments:
- Tejas Shiroor and Asha Ranjan examine India's commercial courts and consider the likely impact the commercial court system will have on arbitration as a dispute resolution mechanism in India.
- Dilber Devitre examines the 2015 Amendment to the 1996 Act in light of its stated objective of promoting international commercial arbitration in India and developing India as an center for international arbitration. She compares the amendments introduced with corresponding provisions under French and Swiss arbitration law, two popular arbitral jurisdictions.
- Sherina Petit, Chintan Chandrachaud and Jahan Meeran reflect upon the seminal decision of Bhatia International v. Bulk Trading SA, which, according to the authors "cast a long shadow over the state of arbitration in India." The authors examine the state of arbitration India and consider the future of arbitration in India.
- Baiju Vasani and Tanvi Mehta address a "longstanding ambiguity" in the 1996 Act - whether domestic parties can choose foreign seats of arbitration. They find the stated 'public policy' reasons for restricting the parties' ability to choose foreign seats insufficient and argue that employing the courts' powers under the New York Convention to set aside foreign awards is more appropriate.
- Sneha Jaisingh and Parinaz Vakil discuss the contours of arbitrability in India, closely examiningvarious significant decisions shaping the Indian approach towards arbitrability.
- Bhagirath Ashiya too addresses the issue of arbitrability, but with a much narrower focus - the arbitrability of intra-corporate disputes. He suggests that we need to move beyond the arbitrability test adopted by the Indian courts and consider intra-corporate disputes arbitrable.
- In the third paper on arbitrability, Manu Thadikkaran and Akshay Sewlikar consider the controversial issue of the arbitrability of fraud in India. They analyse relevant landmark decisions of the Indian courts and conclude that the approach towards the arbitrability of fraud is evolving.
- Azal Khan and Vinayak Panikkar interrogate the enforcement of interim orders granted by foreign seated arbitral tribunals in India. They make out a case for reform of the current regime to ensure that that interim orders granted by foreign-seated arbitral tribunals are enforceable and effective in India.
- Gracious Timothy Dunna dealing with enforcement again, observes that the position in Indian law on the conclusiveness of a foreign judgment is outmoded. After a thorough examination, he proposes avenues for reform.
- Sai Ramani Garimella considers an area of arbitration reform left untouched by the 2015 amendments: third party funding of arbitral claims. She studies the origins of third party funding, the diversity of its models, and the recent regulatory efforts taken by different jurisdictions and puts together a few suggestions for reforming the law in India.
- Still on the issue of third party funding, Anu Shrivastava addresses the controversial issue of enforcement of foreign arbitral awards in India where a third party funder was involved in the underlying arbitration.
- Sumit Rai and Abhishek Dwivedi imagine future possibilities for Indian arbitration law, arguing that India needs to create an appropriate "jurisprudential ecosystem" to enable it to contribute to the evolution international arbitration.
Last, Joel Slawotsky and Ramakrishnan Viraraghavan examine the relevant developments in an important socio-economic issue of our time, corporate social responsibility. They analyze the CSR obligations of a director in Indian publicly-traded corporations, questioning the scope and applicability of these provisions in the "end stage of company life" takeover context.
Due to the enthusiasm and expertise of all contributors, not to mention the valuable and unfailing support of the TDM management, this Special Issue provides not only a unique, critical account of the evolution of the dispute resolution framework in India, but also a timely and important contribution to the global debate on dispute resolution practices, pitfalls and paths for further reform.
Addenda April 2018:
Leïla Choukroune critically addresses India's CSR revolution which started with the Section 135 of the 2013 Company Act and, a few years later, the inclusion of the Article 12 (CSR) in the 2015 new model BIT. Her contribution also reflects upon the pressing need for an alternative legal approach shifting from mere responsibilities and values to rights.
Anish Wadia and Shivani Rawat have demonstrated the permissibility and enforceability of third-party funding in India since 1876 by engaging in an exhaustive analysis of relevant judicial authorities. This is followed by a comprehensive dialogue on all major aspects of third-party funding in international commercial and investment arbitration, including disclosure norms and FEMA. The authors have proposed a viable regulatory framework for India inspired by best practices from other jurisdictions.
 See https://www.ft.com/content/67a84f31-a26b-33c3-8b26-822e3a0f1249 and IMF 2017 forecast: http://www.imf.org/external/datamapper/NGDPD@WEO/OEMDC/ADVEC/WEOW ORLD
 See the latest study by Lucas Chancel and Thomas Piketty on Indian tax system and inequalities: http://www.bbc.co.uk/news/world-asia-india-41198638
 Jean Dreze and Amartya Sen, India and its Contradictions, Allen Lane, 2013. https://press.princeton.edu/titles/10175.html