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TDM Call for Papers: Special Issue on International Commercial and Investment Disputes in and with India

3 January 2017

Update March 2018: TDM 2 (2018) - Special Issue on International Commercial and Investment Disputes in and with India - table of contents (and free excerpt) are avilable here https://www.transnational-dispute-management.com/journal-browse-issues-toc.asp?key=77 

We are pleased to announce a forthcoming TDM special issue on international commercial and investment disputes in and with INDIA.

This special issue will explore past and recent legislative and regulatory reforms initiated by the Indian government, including the 2015 new 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 will also discuss recent developments in the 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 recent - and 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.

For all the above reasons, a special issue on India will provide a timely and important contribution to the global debate on dispute resolution practices, pitfalls and paths for further reform.

Possible topics for submission include:

• India and International Investment Law
  • Indian International Investment Agreements (IIAs) and BITs - historical and contemporary perspectives including India's first BITs, the 2015 new model BIT, past and current Treaties with Investment Provisions (TIPs)
  • India and ICSID -historical, political and legal perspectives for the reason why India is not a party to the ICSID convention.
  • UNCITRAL (Mauritius Convention on Transparency; project for ISDS reform; permanent court with appeal mechanism), ICSID and UNCTAD developments and initiatives and their application to India
  • Indian investment disputes: cases, practices, challenges and controversies
  • Investor-state dispute settlement provisions in India's IIAs: Evolution?
• International Commercial Arbitration
  • 2015 Amendments to the Arbitration and Conciliation Act, 1996
  • 2013 Amendments to the Companies Act, Section 135 on CSR and its effect on international investments
  • Commercial and investment disputes in India: actors, institutions, practices and challenges
    • How to create a world class "Indian" arbitration framework?
      • Interim Relief
      • Emergency arbitration
      • Court assistance in acquiring evidence
      • Third party funding
      • Expedited and fast track procedures
      • Coherent and consistent jurisprudence
    • Future of institutional arbitration in India
    • Review of different arbitral institutions in India - procedures and use
    • The explosion of "Indian" arbitration forums - Need for Diversity and/or Coherence?
    • Arbitration by public sector entities
    • Sports arbitration in India
    • "Arbitrability": Indian idiosyncrasies (fraud, IP issues etc.)
    • Consumer arbitration in India
• CSR, Business and Human Rights (Section 135, Companies Act)

This special issue will be edited by Prof. Leïla Choukroune, Director, Centre for Social Sciences and Humanities (CSH), New Delhi, India, and Maastricht University Law Faculty (The Netherlands), and Rahul Donde, Senior Associate, Lévy-Kaufmann-Kohler, Geneva (Switzerland).

We invite all those with an interest in the subject to contribute articles or notes on one of the topics above or any other related issue.

Students' articles may be accepted but only on an exceptional and case-by-case basis and further provided that:

• The paper is not an assignment as such and has been transformed into a research piece.
• The student's supervisor and academic institution endorse publication in TDM.

 

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