BITs Come Home to Roost but No Philip Morris Moment Yet!

Abstract

This chapter studies closely the ISDS claims brought against India. A careful analysis shows the following: First, cases like White Industries v. India and Devas Multimedia v. India expose the broad and vague language of Indian BITs. Second and equally important is the fact that these cases show that none of the claims have been brought against India because India exercised her sovereign public power in good faith in order to attain an important public policy goal such as protection of the environment or promotion of public health etc. All these claims have arisen against India mainly due to bad regulation. Third, these ISDS claims also show the failure of the organs of the Indian State to be sufficiently sensitive to India’s BIT obligations. Fourth, a closer study of these cases especially of the cases brought by Vodafone and Cairn energy shows India’s hostile attitude towards ISDS.