Designing & Structurization of Indian Bilateral Investment Treaties: An Analytical Study

Abstract

Bilateral Investment Treaties have been vogue since the 1960s and have been undergoing significant change in phases over the years in terms of designing, which introduced substantial changes in the exceptions clause, dispute settlement mechanism, and scope of application inter alia. Indian practice reflects that she has signed 80+ BITs and has framed 2 model BITs over the years. However, in recent years number of BITs was terminated in the hope of renegotiating the treaty terms, of which very few renegotiated BITs have found place till -date. This paper analyses specific development and introduction of new clauses in designing the treaties and offers a comparative analysis of the approach undertaken. The analyses identify three broad areas: (a) Elements found a place in BITs and subsequently incorporated in Model BITs, (b) Elements lost its place in BITs, and its possible impact on the BIT regime, and (c) Elements expressed through different nomenclature; Rationale and Impact. Annexure 1 of the paper further acts as a ready reckoner for investors, industrialists, scholars, and practitioners to examine the presence and absence of a particular clause in a specific country's treaty.