India’s Model BIT includes detailed provisions that aim to regulate access to Investor State Dispute Settlement (‘ISDS’) mechanism. Several law and policy matters have been excluded from ISDS scope, pursuit of local remedies by investors has been made mandatory, and, procedural and temporal pre-conditions have been prescribed in order to file arbitration claim. This paper evaluates whether the ISDS mechanism in India’s Model BIT strikes an appropriate balance between investor rights and a sovereigns’ public policy prerogatives. In order to determine the same, the paper analyzes ambit of ISDS scope exclusions; scope for review of States’ action on excluded matters and possibility of claiming reparations under the BIT for losses consequent thereto; and, feasibility of pursuing local remedies. This paper concludes that India’s Model BIT tilts the scale in favour of the State vis-a-vis investors because by restricting access to ISDS mechanism, investor rights would effectively be weakened.
Arbitration Bilateral investment treaty India Investor state dispute settlement
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