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India and Bilateral Investment TreatiesRefusal, Acceptance, Backlash$
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Prabhash Ranjan

Print publication date: 2019

Print ISBN-13: 9780199493746

Published to Oxford Scholarship Online: August 2019

DOI: 10.1093/oso/9780199493746.001.0001

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India’s BITs

India’s BITs

Mapping the Acceptance—II

Chapter:
(p.172) 5 India’s BITs
Source:
India and Bilateral Investment Treaties
Author(s):

Prabhash Ranjan

Publisher:
Oxford University Press
DOI:10.1093/oso/9780199493746.003.0005

Continuing on the discussion on the key features of Indian BITs from the previous chapter, this chapter studies the following provisions in India’s BITs and FTA investment chapters: expropriation; monetary transfer provisions; general exception clauses; and the investor–state dispute settlement (ISDS) provisions. Like chapter 4, this chapter will also discuss these provisions against the background of ISDS jurisprudence that has emerged on these four issues. The chapter demonstrates that these provisions in many treaties are worded broadly and the determination of the content is subject to arbitral discretion. These broadly worded treaty provisions, subject to arbitral discretion, fail to balance investment protection and host state’s right to regulate. India was primarily a ‘rule taker’ in international investment law because most of these provisions in Indian BITs are borrowed from the BITs of ‘capital exporting’ countries that followed the laissez faire liberalism model.

Keywords:   expropriation, monetary transfer provisions, general exception clauses, non-precluded measures provision, essential security interest, necessary, ISDS

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