India’s BITs

This chapter studies in detail the international law on foreign investment that India has accepted to be bound in the embracement phase. In this regard, the chapter studies the following provisions contained in India’s BITs and FTA investment chapters: definition of investment, which is an important jurisdictional provision; fair and equitable treatment; most favoured nation treatment; and full protection and security. The aforesaid provisions are common to all Indian BITs and FTA investment chapters. The chapter shows that many of the treaty provisions are broadly worded. In order to better understand the import of the language of these provisions, they will be situated within the broader jurisprudence of the ISDS. Depending on arbitral discretion, these broad and vaguely worded provisions are capable of interpretation that gives precedence to investment protection over the host state’s sovereign regulatory power, instead of striking a balance between the two.