The third round of negotiations for a free trade agreement between India and the European Union (EU) has recently concluded. The two sides are also negotiating investment protection agreements (IPAs), which include investment protection standards and an independent mechanism for settling disputes between investors and states under international law.
Despite the government’s commendable intentions to welcome them, foreign investors in India have often been embroiled in a number of regulatory troubles with the state: Vodafone, Cairn Energy, Nissan, Several foreign companies such as White Industries, Telenor, Nokia and Vedanta are suing India to enforce their rights under Bilateral Investment Treaties (BITs). This is the main motivation behind the EU seeking an IPA with India. Perhaps EU investors can look to Indian law for protection. However, Indian law can be changed unilaterally to the detriment of investors. Moreover, the Indian judiciary is very slow in resolving disputes. Hence the longing for protection under international law.
However, as declared in India’s 2016 Model BIT, the road to success for India-EU IPAs is rocky, largely due to India’s inward-looking approach to investment protection under international law. will be The following difference between the two is daunting.
First, India wants to push tax measures out of the treaty by unjustifying tax-related regulatory measures. The EU has struggled to accept the proposal given India’s recent history of tax-related investment disputes with Vodafone, Cairn Energy and Nissan.
Second, the EU investment proposal for India talks about creating a two-tier court-like system with an appeals mechanism and life judges to resolve treaty disputes between investors and states. The proposal relates to the EU’s international position on the creation of a Multilateral Investment Court (MIC), which is under negotiation at the United Nations Commission on International Trade Law (UNCITRAL). The MIC aims to overcome the weaknesses of the current arbitration-based system of resolving investor-state disputes. India’s position on creating an investment court-like institution is unclear. India has not publicly contributed to the ongoing negotiations at UNCITRAL towards the establishment of the MIC.
Third, the EU investment proposal contains Most Favored Nation (MFN) provisions to ensure that EU investors do not face discrimination from other foreign investors. Meanwhile, India has taken a position not to include her MFN clause in investment treaties due to concerns that foreign investors will take advantage of her MFN clause to indulge in disruptive treaty shopping. . The solution to such disruptive treaty shopping is to negotiate an eligible MFN provision and not exclude it outright.
Fourth, the EU investment proposal contains a so-called Fair and Equitable Treatment (FET) provision, which India’s 2016 Model BIT lacks. The FET provision protects foreign investors, for example, by making the state liable for reverting to certain guarantees made to investors to induce investments they relied upon in making their investments. .
It is a common and flawed perception in India that there is no need for an investment treaty like the India-EU IPA because foreign investors are flooding India’s shores anyway. You can’t get farther from the truth. According to Arvind Subramanian and Josh Felman, overall his FDI into India has stagnated at around 2% of GDP over the past decade. For the EU, the share of foreign investment in India increased from €63.7bn in 2017 to €87.3bn in 2020, compared with China (€201.2bn) and Brazil (€201.2bn). is well below the share of foreign investment in the EU. 263.4 billion). Moreover, recent research by Simon Hartmann and Rok Spruk shows that India’s decision to unilaterally terminate the BIT has had a negative impact on her FDI inflows to India. India therefore needs an IPA with the EU to attract FDI to reach the ambitious milestone of becoming a $10 trillion economy by 2030.
But first, India needs to put its own home in order. India needs to review her 2016 model BIT. It is also recommended by the Parliament’s Standing Committee on External Affairs. At the same time, India should develop a clear position on her MIC and, like the EU, maintain a high degree of transparency in negotiations by publicly clarifying its position on key issues.
The author is Professor and Associate Dean of the OP Jindal Global University Jindal Global Law School.Views are personal