|VOLUME 1|ISSUE 2|APRIL 2018|ISSN: 2581-3595|
INTERNATIONAL INVESTMENT ARBITRATION HISTORY DEVELOPMENT AND STATUS QUO
AUTHORED BY: D VENKATA SAI YASASCHANDRA, B.A.LL.B, NATIONAL LAW UNIVERSITY ODISHA, CUTTACK.
The International Law relating to investment is very peculiar and has gathered a lot of importance in the recent past. The surge in the number of cases of investment-related disputes since the past decade along with the rise in the usage of principles of International Investment Law in Investment treaties rather than the quintessential rulebook was way beyond imagination. The law governing Foreign Direct Investments has of late risen exponentially with the rise in instances of the name finding its mention in dispute settlement activities as juxtaposed to Inter-Governmental negotiations. The term International Investment Law, which deals with Bilateral Investment Treaties (BITs) and the disputes arising thereof, is used in dispute settlements. In disputes involving most of the countries, including India, settlement of disputes would be by way of arbitration. This is so because of the general conception amongst investors that a country having a strong legal system doesn’t necessarily mean that a foreign investor may be adequately protected. General apprehension amongst investors that there may be bias in the case of resorting to National Courts of either of the parties is another reason for settling through arbitration. “Such tribunals entertain claims between foreign investors and host states brought under investment treaties. The states specifically mention the way they wish to proceed in cases of a dispute through clauses in their treaties which is binding on both the parties”. “Investment Law transpires and develops in view of arbitral precedent and case law rather than treaty interpretation. Acquiescence by host states before litigation is another contributing factor to the rise in International Investment Law”.
One can trace back the origin of BITs in India to the mid-1990s when the Government of India first initiated them under the pretext of offering favourable conditions for investment and treaty-based protection to foreign investors. Exemptions on import duties and tax for investments in growing sectors of the economy coupled with enhanced securities against adverse changes attracted foreign investors and thus promote a flow of investments into the Indian market. All BITs to which India is a party to are quite different although the common characteristics remain the same. Notably, Indian BITs do not give a right to make an investment in India. The Indian Government also has the discretion to determine the sectors which are open to foreign investments and the terms and conditions too. It is important to note that under these controlled conditions related to investments in India, the nitty-gritty related to the settlement of a dispute is completely different which will be dealt with later on.
There broadly are two types of dispute settlements namely, State to State Dispute Settlement and Investor to State Dispute Settlement. State to State Dispute Settlement (SSDS) as juxtaposed to the present day Investor to State Dispute Settlement (ISDS) requires the involvement of both the governments as parties to the dispute. “An investor in this system ran the risk of the government not bringing a State to State claim, even in cases where there was a clear breach of the treaty obligation.”The problem at times would escalate into creating conflicts between the states in case government would decide to address the problem. Even though there was room for a diplomatic solution, such recourse was viewed as completely political in nature and not judicial.
In a situation where there would be a problem in either pursuing or not pursuing an action, there was an imminent need for a more comprehensible system which would mitigate the problems faced by SSDS, thus giving rise to Investor to State Dispute Settlement. One of the many reasons for the shift from SSDS is political implications and problems related to management of resources and costs by the host country. ISDS offered a more comprehensible procedural mechanism in an international agreement upon investment. Countries sign on them to set ground rules related to investments in the host state. This mechanism allows an investor of one country to bring a case before another country directly before a tribunal. Under this system, in order to bring a case, the complainant had to prove that the other party violated the terms of the agreement.
Present day, ISDS is the most effective and widely used resort and in as many as “3000 investment agreements around the world there exist specific provisions related to the settlement of investment disputes through Investor to State Dispute Settlement.”
INTERNATIONAL INVESTMENT AGREEMENT AND ISDS
Ever since “the first ever Bilateral Investment Treaty (BIT) was concluded between Germany and Pakistan way back in 1959, there was a lot of concern regarding investment protection and ways to ensure that the countries adhere to the agreement signed by them. In this regard, the development of International Investment Agreement (IIA) regime from the era of infancy to the present era between the 1950s till date is pivotal”.
The era of Infancy from the 1950s to 1964 is marked by the establishment of International Centre for Settlement of Investment Disputes (ICSID) for the purpose of settling investment disputes by way of arbitration in 1965. The institution whose parent organisation is World Bank came into effect in 1966 by a convention on settlement of investment disputes between States and Nationals of other states and has ever since its inception worked indefatigably towards administering of a majority of all international investment cases. The awards of ICSID were binding on the parties, thanks to the ‘New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards’ in 1958 which facilitated enforcement of International Arbitral Awards. This era, however, lacked investment protection.
The time period from the mid-1960s to late 1980s was termed as the era of dichotomy by UNCITRAL in the World Investment Report. “The number of International Investment Agreements expanded in number and substance with the participation of major developed countries like Europe and developing countries like Africa, Asia, and Latin America”. This era saw enhanced investment protection by way of ISDS provisions in BITs. More and more countries which were entering into agreements agreed on provisions related to investment protection, the earliest available source of inclusion of provisions of investment protection in a BIT is in the year 1968 in a BIT between Indonesia and Netherlands. Many other countries too included ISDS provision for investment protection, until 1990 where it became a standard provision amongst BITs involving major countries. Though providing for investment protection was a success, attempts to strengthen and emphasise on investor responsibility failed miserably. Establishment of multilateral investment rules failed despite successive attempts by the United Nations. No solution could be found to bring together the interest of developed countries as juxtaposed to the interests of developing and socialist countries. While the former wanted a strong and unequivocal safety of their investments, the latter wanted to preserve their sovereign rights and to treat Multi-National Enterprises according to their own laws and regulation and hence the name ‘dichotomy’.
The Global IIA regime expanded at an enormous pace with the scope of ISDS increasing like never before. Many countries though included Investment Liberalisation compound in their BITs, states started to discover the true power of ISDS. The period from the 1990s till 2007 is termed as the era of Proliferation marked by major world events like India’s Liberalisation, Privatisation, Globalisation; China’s ‘Open Door’ Policy, Establishment of WTO in 1994, The Energy Charter, Asia – Pacific Economic Corridor, North Atlantic Free Trade Agreement. All these events significantly contributed to economic globalisation, expanding the universe of BIT and increased ISDS protection to foreign investors against host states. The BIT rush, however, slowed down by a major economic crisis in 2008 in the United States – preceded by Asian and Argentinean Financial crisis – these events shook the world and many countries reacted positively by refining their treaty content, facilitating greater market access by ensuring non – discriminatory treatment of foreign investors.
There was a paradigm shift towards ‘Sustainable Development’ since the events of the early 21st century. Sustainable development was high on the agenda and was, in fact, the special theme of World Investment Report 2012. The era since 2008 is called the era of re-orientation. The UNCTAD’s Investment Policy Framework for Sustainable Development (IPFSD) acted in response to the persistent crisis and pressing social challenges and helped mobilise investment. It also ensured that Sustainable Development shall be an Objective and top priority for all countries. The rate of new-treaty based ISDS cases sky-rocketed unabated with 568 known cases of ISDS between 1987 and 2014. The number further increased to 787 by 2016.
However, the then present regime of IIA wasn’t free from problems. There existed an inherent flaw in the IIAs and UNCTAD ever since the recognition assiduously worked towards correcting the problem.
The ISDS too faced a lot of criticism. A few of them as pointed out by UNCITRAL are – “Pro-investor interpretation of substantive treaty protections; Divergent interpretation of similar or identical IIA provisions, inconsistency and unpredictability of decisions, Lack of transparency in investment disputes, Lack of independence and impartiality of arbitrators, ISDS allowing international companies to bypass National Judicial Systems, When governments concede to the demands for ISDS provisions they may be less willing to agree to other reforms such as greater market access, Despite absence of investment treaties foreign direct investments flow into countries like Brazil”, Chilling effect on state regulatory powers and Costs.
Reforming ISDS was high on the agenda and there was an impending need to take up concrete steps at a multilateral level. UNCTAD, in a first, in an annual meeting in 2014 laid down through its World Investment Report (WIR) a strategic approach to deal with the dispute settlement system emphasising on the needed reforms and objectives sought. UNCTAD’s Investment Policy Framework for Sustainable Development, a brainchild of WIR 2012, worked on the reorientation of IIA rulemaking. Taking leads from the new context for investment policymaking, nationally and internationally, UNCTAD in the subsequent World Investment Reports 2015, 2016 laid down a roadmap for IIA Reform and identified five areas in the IIA where there was a need to take action – “Safeguarding the right to regulate, while providing protection; Reforming ISDS; Promoting and facilitating investment; ensuring responsible investment; enhancing systematic consistency”.
There was a lot of deliberation on the reforms for IIA and the need for it. ISDS via International Arbitration was at the centre of this discussion. Though different countries had different points of view as to what should be done, they all, however, agreed on one common point i.e. to not maintain the status quo ISDS, given the criticism. “The set of options for reforming dispute settlement system were: – a) to fix the existing mechanism by way of improving arbitral process, limiting investor’s access and introducing local litigation requirements; b) adding new elements to the existing mechanism like introducing an appellate mechanism and building an effective alternative dispute resolution; c) replacing existing ISDS by creating a standard International Investment Court or replacing ISDS by domestic dispute resolution”.
The states were free to choose whichever option they wanted. They exercised their choice by way of relevant clauses in their BITs. For instance, the agreements involving EU with Canada and Vietnam contain provisions for approaching a permanent Investment Court System. India, on the other hand, emphasises on local litigation first, exhausting all the remedies available and then approaching the international arena.
It is a known fact that the world is dynamic in nature and so is International Investment Law. Sustainable development – guided reforms came into limelight in the International Investment Policymaking through World Investment Reports 2015, 2016. UNCTAD in its report ‘World Investment Report 2017′ emphasised on the need to move on to the next set of reforms for a scintillating growth of International Investment Regime. ‘Modernising the existing stock of old – generation treaties’ was the main focus point in WIR 2017, what it called was phase II of IIA reform. It was, perhaps, the time to modernise the existing first-generation treaties, which were obsolete in the modern era. The rationale behind this move was that, it isn’t enough if new treaties adhere to the Sustainable development goals of the IIA but that already existing BITs need to be modernised and ready to take on the challenges ahead; what it termed as the two – Pronged approach.
The guidelines for reform were many; Harness IIAs for Sustainable Development, focusing on the vital parts of the reform as identified in WIR 2015, 2016, action at all levels – Multilateral, Regional, Bilateral, National, an inclusive transparent process and multilateral supportive structure. All these were to serve as the areas of concern and main focus point for policymaking decisions of the countries. “The countries would, while putting treaties into practice, nuance, clarify or omit the traditional provisions and replace them with new provisions which would be in compliance with the sustainable development agenda of the IIA regime”.
WIR 2017 laid down as many as 10 options available for counties to transform their BITs which include – Joint interpretation of treaty provisions, amending the existing provisions, replacing the ‘outdated’ treaties, consolidating the IIA network, managing relationship between co-existing treaties, etc.
To sum it up, the efforts made were an effective way to deal with the dispute settlement mechanism and sustainable development goals. Giving the parties to the agreement a choice as to choose amongst the many options available to deal with settlement of disputes and ways to reform the already existing traditional treaties was the best available option.
TRANSPARENCY – THE NEED OF THE HOUR
With the increase in Investment protection by reformed and enhanced provisions of ISDS and with ways to ensure that the existing treaties comply with ‘new sustainable goals’ most states bounced back to square one by choosing ICSID as their rule book. Traditionally, as already discussed earlier, the era of infancy of IIA saw the setting up of “World Bank’s International Centre for Settlement of Investment Disputes (ICSID) through the Convention on the Settlement of Investment Disputes between States and Nationals of other States (1965)”. “The rules governing arbitrations related to investment disputes, ever since its inception, was the ICSID convention. Later on, however, with the introduction of ICSID’s later facilities and revised UNCITRAL (1979) Rules 2010, the parties to the agreement had the option to choose the rule book they wanted”.
The period when Investor-State arbitration was undergoing a complete overhaul in the system, many investors and governments felt that it was important that there should be a transparent and legitimate system in place for better understanding and gain more insight into investment treaties. “Traditionally, it was frequently inconceivable for the public and the countries to even know that arbitration have been recorded, what was at issue in the debate, what Witten and oral contentions were being made, what the arbitrators’ jurisdictional or procedural rulings were, and what the ultimate decision was”. This was appalling for the general population as well as for policymakers and arbitrators, as they did not have the knowledge as to how settlement arrangements are deciphered by courts. As an outcome of not having transparency, the administration was not being enhanced, and settlement usage at the local level was troublesome. Besides, governments were denied information expected to legitimately deal the blemishes of the system and additionally enhance the substantive treaty law. At long last, governments wouldn’t have the capacity to sufficiently address the future dangers of being sued by outside investors, since they couldn’t foresee the type of cases and the basic issues tended to in the past arbitrations. The need for transparency and legitimacy thus became very important.
At a time where there was a pressing need for a system to ensure transparency, the United Nation General Assembly through a resolution on the 16th of December 2013, on the basis of the report of the 6th committee adopted the “United Nation Commission on International Trade Law Rules on Transparency in Treaty-Based Investor-State Arbitration and Arbitration Rules [UNCITRAL Rules on Transparency].” “These new rules will ensure significant openness in the arbitration proceedings. These rules will come into effect on the 1st of April 2014”. This means that for all those treaties which come into effect after 1st of April 2014, these rules by default will be applicable. However, “to facilitate transparency in arbitrations brought under those treaties that are entered into before 1st of April 2014, UNCITRAL Rules allow an option called ‘opt-in’ where the parties to the agreement concur to ‘opt – into’ the new rules”. “The proviso related to opt-in process contained vague terms as they never really mentioned the type of the agreement between the states when they prefer to opt the new rules”. This gave room to the countries to agree on terms of agreement on their own. Another hitch was that these rules were only applicable to those treaties which were governed by the revised UNCITRAL (1979) Rules 2010. As mentioned earlier, the signatories had an option to choose whatever rulebook they wanted. This initiative didn’t provide a mechanism to ensure transparency in those arbitrations governed by the ICSID rules. Thus, it can be said that this move didn’t if truth be told, provide an effective mechanism for ensuring transparency.
In order to correct the complications of the existing rules, The General Assembly adopted a convention on Transparency in Treaty-Based Investor-State Arbitration on the 10Th of December 2014. “The above Convention was adopted on 10 December 2014 by resolution 69/116 during the sixty-ninth session of the General Assembly of the United Nations. In accordance with its article 7, the Convention shall be open for signature in Port Louis, Mauritius, on 17 March 2015, and thereafter at United Nations Headquarters in New York by any State or by any regional economic integration organization that is constituted by States and is a contracting party to an investment treaty”.
This convention was open for signatures at Mauritius on 17th March 2015. “Under this convention, all the signatory states agree that the UNCITRAL Rules on Transparency will be applicable for those treaties that are entered into before the 1st of April, 2014, irrespective of the rules of arbitration that are applicable to the parties of that treaty”. As of 20th September 2017, there are 22 signatories to the convention, the latest one being the Gambia. However, only 3 countries – Canada, Mauritius and Switzerland – have ratified this convention and are parties to the convention too. “Switzerland was the most recent to ratify the convention on 18Th April 2017”. “This means that the convention will be in force from the 18th of October 2017”. Currently, the convention is applicable to only one BIT which is between Switzerland and Mauritius.
Even though this convention appears to be an effective way to deal with the problems associated with Transparency and Legitimacy in Investor-State Treaty Arbitration, the reluctance that this convention received, India for instance, suggests that there exist some demerits too. “One factor that may add to the States’ unwillingness to sanction the Convention could be that; insofar as the States are not Parties, they can apply the UNCITRAL Rules on Transparency on an ad-hoc basis”. Thus, “they might be hesitant to sign a deal obligates them to apply the standards in each dispute emerging out of an agreement with a State who is likewise a Party to the Mauritius Convention.
Besides, keeping procedures off the record may be to the State’s priority. By picking not to “opt – in” to the obligatory application of the rules, States have significantly greater adaptability when fitting in with transparency benchmarks. It is anything but difficult to see the interest of having the capacity to benefit oneself of the transparency rules while not formally being compelled by their required application. Moreover, the absence of commitment by and large from the worldwide group normally puts less weight on States to tie them to the Convention”.
It is, however, premature to weigh the pros and cons of the convention as it has been in force only for 3 months now. The real fruits of the idea may be tasted when this really starts to benefit the signatories. For now, the application of this convention ensures an institutionalised approach to the perception of Investor-State Arbitration. This, however, necessitates that the state should be all in for ensuring that the transparency standards are met. The Convention would, hence, “gain more traction over the coming years; possibilities are that it could stand as an exemplary model to be taken in the future by States in their approach toward reforming this field of international law”.
India’s Stand on BIT and ISDS
India signed its first BIT in 1994 with the United Kingdom offering favourable conditions for investment, promoting foreign investments and protecting investment abroad. This is, in fact, one of the integral components of economic development of a country. In this dynamic world economy, the stability of BITs is of utmost importance for it ensures a balance between regulatory autonomy and investment protection. Since 1994, India entered into BITs with 75 different countries out of which 66 are already in force. These BITs help in bringing in foreign investments which in turn help raise the GDP of India. Moreover, these help in alleviating poverty by increasing the employment opportunities and also bring in new technology. While it is important to support foreign investments, it is equally vital for a developing state like India to have policy flexibility and incentives for sustainability. John Ruggie refers this as the “governance gaps created by globalization- between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences”
To strike a balance between the two means to have a sustainable development law and policy which will help reconcile varied interests, engage one so as to promote another spanning across all investment regimes. Indeed, this is exactly the case with India and the fact that around 40 of the 66 Indian BITs which are already in force are with developing and less developed states speak for itself. The global trend with investment policies is this that major world economies came up with divergent approaches to the making of an international investment treaty agreement. The United States of America, for example, came up with a Model BIT in the year 2012. “This approach of the United States in the 2012 United States Model BIT is, for the most part, reflected in the content of the Trans-Pacific Partnership (TPP) agreement. The European Union’s proposition in the Trans-Atlantic Trade and Investment (TTIP) negotiations adopted its own strategy by recommending a more permanent body like an international investment court to supplant investor State assertion, amongst many other developments”. China, on the other hand, came up with quite distinctive treaty terms than the Trans-Pacific Partnership provisions which are be found in China’s recent closed accord with Australia and Canada. Then again, Brazil and South Africa have maintained a strategic distance from approval of BITs as of late.
India too is no different in surprising foreign investors by opting for a whole new approach for investment – treaty making. India through its model BIT adopted for a more focused defensive strategy than the preceding BITs. “This move is likely a result of the past experiences of India in 2011 when the award was against India in the case of White Industries Australia Limited V the Republic of India and the two tax-related cases brought against India in 2014 by Vodafone and Nokia”.
The model text for the Indian Bilateral Investment Treaty contains a plethora of provisions which hint at the defensive strategy that India aimed to adopt. “There is no explicit reference made to the Fair & Equitable Treatment standard, which is a commonly invoked standard of protection in investment treaty disputes. Instead, the model BIT protects against measures which constitute a violation of customary international law through a closed list which includes: denial of justice, a fundamental breach of due process, targeted discrimination, and manifestly abusive treatment. An investor may not bring investor-State arbitration until it had exhausted local remedies, or until five years have passed in pursuit of the exhaustion of local remedies. The BIT protections apply to measures taken by national, state, and union territory governments, but do not apply to local governments. The BIT’s protections do not apply to tax laws or measures taken to enforce tax obligations. The text explicitly excludes treaty protection for pre-investment activities related to the establishment, acquisition, or expansion of any investment”.
Around the same, India enacted a new arbitration law on the 31st of December 2015. This new law which has prospective application only seeks to draw more and more investments to India and help provide for a better dispute settlement mechanism in India. “The new model BIT and arbitration law sent mixed signals to foreign investors in India. The model BIT narrow down many treaty-based protections, while the new arbitration law aimed to make India a more desirable location for foreign investment”.
The European Union and Canada informally proposed for a global investment pact at the World Economic Forum Annual Meeting 2016 held by World Economic Forum at Davos, Switzerland. This proposal was, however, rejected by India, Brazil, Japan and Argentina. The proposal was that the countries would work towards a multilateral pact on investments at the World Trade Organisation that would have an ISDS mechanism built on it. They felt that there was a need for ISDS mechanism to be in a multilateral investment too while India maintained that it is optimum if the parties approach international courts only after they exhaust all their available remedies at the domestic level. This idea was reflected in the model BIT of India too, which however is quite different from the general ISDS mechanism. India also asked all countries with which India has investment protection agreements, including the EU, to re-negotiate those pacts on the basis of the new draft text of BIT making its intentions clear with respect to dispute settlement mechanism.
These recent events are compelling investors to reconsider their stance with regard to investments in India. With the model BIT of India obstinate to mend ways of investment dispute resolution, it seems to be a tough road ahead for foreign investments in India.
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