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Draft Indian Model Bilateral Investment Treaty Text
Start Date :
Mar 23, 2015
Last Date :
Apr 11, 2015
12:00 PM IST (GMT +5.30 Hrs)
The objective of the Indian Model Bilateral Investment Treaty text is to provide appropriate protection to foreign investors in India and Indian investors in the foreign country, ...
The objective of the Indian Model Bilateral Investment Treaty text is to provide appropriate protection to foreign investors in India and Indian investors in the foreign country, in the light of the relevant international precedents and practices, while maintaining a balance between the investor’s rights and the Government obligations. The model text will form the basis for negotiations with other countries.
Comments/suggestions are invited on the draft text.
The last date for submission of your comments is 11th April, 2015, 12:00 noon.
When we talk about Indian Model Bilateral Investment Treaty, we talk about the nest benefit derived in form which will lead to economic growth along with development of live Mass ( Trickle down Theory). Investment in service & manufacturing sector has been common; what about Agriculture & renewable energy sector. Plans may be made on this too. Investment on Brain and Effort needs to be calculated and quantified.
Bilateral treaties whether in terms of investment to & from, both needs a deliberate approval from Indian population. As the time has come for participation in governance of county through selected leaders. All needs to know about the bilateral treaties and impact on our society and development proposed by it. New word for many common man needs to be clarified and more participation may be invited.
We are glad to present you our suggestions and comments on the Model Text of the Draft Indian BIT 2015. We commend the government for its right decision to revisit the 2003 BIT. However, we believe that the government has gone overboard with its desire to regulate and limiting the protections available to investors. BIT is not a tool of regulation and the government must refrain from using it as one. Please read the report attached for suggestions.
[Continued]... and not any other factor (i.e. same party/ same cause of action). Otherwise the very important duty will, I expect, be frustrated by creative arbitrator reasoning, as has happened in numerous cases re: forks in the road, wait periods, and contractually agreed forums.
Unfortunately ,if investor-state arbitration remains available, there is always a risk of costly arbitrator adventures for states.
I hope this comment has been useful, and thank you.
G Van Harten, OHLS, Toronto
[Continued] ... I expect arbitrators will avoid it. For an elaboration of their alarming record of pro-claimant expansiveness on this issue, please see my text Sovereign Choices and Sovereign Constraints (Oxford University Press, 2013) pages 135-50. I suggest to address this loophole by making clear that the claim must be submitted to domestic remedies where it arises from the same factual dispute as that submitted under the treaty and not any other factor...
[Continued] ... unless the other claim related to the same factual dispute, was brought by the same corporate party (making it fairly easy to bring a parallel treaty claim by using a different company in the same group), and was brought based on the same cause of action (making it very easy to bring a parallel treaty claim by describing the cause of action in terms of the treaty instead of domestic law). If the model treaty does not address the issue of the triple identity test, I expect...
I offer this specific comment on the duty to exhaust local remedies in Article 14.3. I do not think the duty will be applied as expected by arbitrators. In the similar situation of parallel treaty claims pursuant to a fork-in-the-road clause or contractually agreed forum, arbitrators have regularly applied the exacting "triple identity" test to avoid such clauses and forums. Thus, they have allowed parallel claims under the treaties unless the other claim related to... [continued in next post].
I offer my congratulations to the Government of India for developing this new BIT model.
The model incorporates many positive and innovative elements. With all of these elements, India will significantly reduce the risks and constraints it faces in association with investor-state arbitration, while also ensuring reasonable protections for foreign investors.
One of the key elements of the new model is the duty to exhaust local remedies in Article 14.3. I will continue in a separate post.
माननीय-महाशय-(1)बिदेशी उत्पादित बस्तु भारत मे बिक्रि करने के लिये-उसकि गुण-मान-मुल्य कि ध्यान देने परेगा,(2)-भारत मे बिनियोग करके शिल्प स्तापन करने के लिये पश्चगामी स्थान को हि चुनने परेगा-आर देश कि स्किल को सहि बेतन देके काम देनेका शर्त राखने परेगा(3)भारतीय बिनीयोग कारी को बिदेश मे निबेश करने के समय सरकार उसे पुरा सहयोग करे,बिशेष करके कानुन आर फाइलो को,(4)हर बस्तु कि सरकार द्वारा मान्न्यता प्राप्त होने होगा(5)जल्द समाधान के लिये एक अथबा अधिक सरकारी दफप्तर जरुरी-बिनीयोग कारी-क्रेता-जनता के लिये
Going through some of the comments offered here I would seriously advise the the person offering comments to stick to the report since general comments are not of any help to anybody.This is not a criticism but if all of us want to help the government to formulate right policies we should stick to theme. Lastly I must mention that I live abroad and in no way connected to the government. I am extremely interested though in seeing India developing into a global power.