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Investment Arbitration. A plausible mechanism to sustain FDI in India

Hausarbeit 2020 68 Seiten

Jura - Öffentliches Recht / Sonstiges

Leseprobe

TABLE OF CONTENTS

1. GLOSSARY OF TERMS

2. INTRODUCTION

3. WHAT IS INVESTMENT ARBITRATION OR INVESTMENT TREATY ARBITRATION?
3.1 Meaning
3.2 Difference between International Commercial Arbitration (ICA) and Investment Arbitration/Investment Treaty Arbitration (ITA)
3.3 Consent of the host state for entering into Investment Arbitration
3.3.1 Bilateral Investment Treaties (BITs)
3.3.2 Free Trade Agreements (FTAs)
3.3.3 The Energy Charter Treaty
3.3.4 The ASEAN Comprehensive Investment Agreement
3.3.5 Human Rights Treaties
3.4 Various Arbitral Institutions that conduct Investment Arbitration
3.4.1 International Chamber of Commerce Paris
3.4.2 Stockholm Chamber of Commerce
3.4.3 London Court of International Arbitration
3.4.4 International Centre for Settlement of Investment Disputes
3.5 Enforcement of Foreign Arbitral Awards
3.5.1 The New York Convention
3.5.2 Other Multilateral Conventions
3.5.3 Bilateral Conventions
3.5.4 National Model Laws

4. BILATERAL DIRECT INVE NVESTMENT TREATIES AND FOREIGN STMENT

5. HISTORY OF BITs IN INDIA
5.1 Phase I From 1994 to 2010
5.1.1 BITs as instruments to attract foreign investments
5.1.2 Dabhol Power Project
5.2 Phase I rI From 2011 till continued
5.2.1 The White Industries Case

6. CHAN INVES GING APPROACH OF INDIA TOWARDS >TMENT TREATIES

7. ANALYSIS OF INDIA's NEW MODEL BIT AND ISSUES CONCERNING INVESTOR STATE DISPUTE SETTLEMENT (ISDS) AND INVESTMENT TREATY ARBITRATION (ITA)
7.1 Preamble
7.2 Definition of Investor and Investment
7.3 Scope and general provisions
7.4 A new approach to FET obligation
7.5 National Treatment
7.6 Absence of Most Favoured Nation
7.7 Umbrella and other Stabilisation clauses
7.8 Expropriation
7.9 Transfers
7.10 Liability of Investors
7.11 Exhaustion of local remEdies
7.12 Arbitral Tribunal
7.13 Appeals
7.14 State v. State
7.15 Exception Clauses
7.16 Review, Amendment & Termination
7.17 Analysis

8. CONCLUSION

9. REFERENCES

ACKNOWLEDGEMENT

I am extremely grateful for being awarded with the opportunity to write a term paper on the topic, ‘ Investment Arbitration: A plausible mechanism to sustain FDI in India'. Throughout the pursuance of this endeavor, I have been supported by the people close to me. At the foremost, I would thank my term paper supervisor Dr. Sharanjit for allowing me the freedom to write on the topic of my choice and allowing me to express myself and her continued support and guidance at every juncture. Secondly, I would express my gratitude to another learned faculty of our esteemed university, Dr. Gurmanpreet who suggested me the different approaches I could take and provided insights which were extremely practical. While the names of all those who have helped me at different stages of my attempt to write a distinguished paper cannot be written here, I am grateful to everyone including my seniors, my peers and my batchmates.

Ultimately, I am forever beholden to my parents for their arduous effort and a lot of sleepless nights that they have burnt out for me, without which I would not be writing any of this or dreaming those dreams that I dream right now.

1. GLOSSARY OF TERMS

I. Arbitration - Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.1

II. Arbitrator - An independent person officially appointed to settle a dispute by presiding over the arbitration proceedings.

III. Arbitration Panel - A panel of arbitrators, usually odd in number which presides over and adjudges a dispute and renders an award by simple majority.

IV. Ad-hoc Arbitration - An arbitration which is managed and administered by the parties themselves. Here the parties amongst themselves choose the arbitrator/arbitrators, rules of procedure to be followed throughout the arbitration proceedings, rules of evidence which substantial law would govern the adjudication of the dispute, time-period of arbitration etc.

V. Institutional Arbitration - An arbitration which is conducted and governed by a dedicated arbitral institution having their own sets of rules of procedure, rules of evidence, panel of qualified arbitrators.

VI. International Commercial Arbitration - An arbitration where the parties to a dispute are of different countries and the dispute has arisen out of a commercial agreement between them. International Commercial Arbitration under Indian law has been defined as a dispute arising out of a ‘legal relationship which must be considered commercial, where either of the parties is a foreign national or resident, or is a foreign body corporate or is a company, association or body of individuals whose central management or control is in foreign hands.'2

VII. Seat of Arbitration - It is juridical seat of the Arbitration and not the geographical or physical one. It is primordial importance as it determines the what laws would govern the arbitration proceedings and which courts exercise supervisory jurisdiction over the award thus made.

VIII. Venue of Arbitration - It is the actual place where arbitration proceedings are conducted.

IX. Investor state dispute settlement (ISDS) - Investor state dispute settlement (ISDS) is an existing part of numerous trade and investment treaties and agreements that makes it possible for an investor of a state who is a party to such treaty or agreement to bring a suit against another state party in which the foreign investor has made the investment, on account of an alleged breach by the host state of the agreement or terms and conditions of such treaty.

X. Foreign Direct Investment (FDI) - A foreign direct investment (FDI) is an investment in the form of a controlling ownership made by one party or an individual in one country into business interests located in another country.3

XI. Foreign Portfolio Investment (FPI) - Foreign Portfolio Investment (FPI) is investment by non-residents into a country in the form of securities which may include shares, debentures, government bonds, corporate bonds, other different form of convertible securities, etc.4

XII. Protection From Expropriation - Expropriation may be defined as the seizure of a foreign asset by the host State without giving any payment or consideration to the foreign investor, hence essentially alienating the foreign investor of his opportunity to earn reasonably expected profits.

XIII. Fair And Equitable Treatment (FET) - Fair and equitable treatment is the most ubiquitous term in most investment treaties and is the most frequently invoked condition, the breach of which is contested in most investment disputes. According to this FET concept, the States have a liability to maintain stable and predictable business environment which is conducive to business expansion and growth and meets investor expectations.

XIV. National Treatment - According to the principle of National Treatment, the host State is required under international legal principles to treat the foreign investments at par with the investments made by its own resident individuals and companies/organisations/firms. This is done to ensure that the foreign investors are in a position to compete with the national investors of the host state and have access to equal business opportunities as them and to ensure that the host State does not discriminate between foreign and national investors while legislating and making rules and regulations regarding doing business.

XV. Most Favoured Nation (MFN) - A (MFN) clause mandates that a nation provide any benefit, leniency, concession or immunity that it provides to one nation in an agreement, to all the other r countries. Notwithstanding that its name specifies otherwise, i.e. bias toward one nation, it bats for the equal treatment of all nations.

2. INTRODUCTION

“Successful investment is all about managing risk, not avoiding it5

-Benjamin Graham

Cambridge dictionary defines Investment as, “the act of putting money, effort, time, etc. into something to make a profit or get an advantage.”6 It seems only right that everyone should get the worth of their money, time and effort.

Any country, and especially developing countries require capital for its growth. This capital is utilized mainly on developing infrastructure, defence, healthcare and other public services, promotion of industries, and further research and development. Now in case of most developed countries, this need for capital is fulfilled by a self-sustained model of their economy, meaning that their established economic system generates enough capital by itself to further fuel its own continued growth. This may be either through industrial income, agricultural income, or a combination of both, exports of medicines, defence equipment or technology, or income from business set up in other countries of the world.

But the developing countries with smaller economies, less developed infrastructure, debts from public sector undertakings, do not have this self sustained model of growth. Thus, for them, their arises a need of infusing capital in the economy from external sources. This external sources come from beyond the territory of a country and are hence referred collectively as ‘foreign investments'.

As termed, foreign investments come from foreign states, from foreign investors who may seek to start a business in a particular country or may want to acquire a stake or control in an existing business in an existing country. In either of the case, this decision is heavily influenced by the relations between the state from which the investor belongs and the state in which the investment is to be made. Other factors that may heavily influence the decision of the investor include, how business friendly the state is, its inclination towards relaxing the rules and regulations, a standard reflection of which can be found in the ‘Ease of Doing Business Index'7.

This investment is beneficial to both the investor and the state in which the investment is made. The investor gets new opportunities to expand his business and generate income/profit and the recognition of his brand and in turn the state gains employment opportunities for its citizens, development of that particular area in which the investment is made and sometimes even technological know-how of the investors is also shared by those investors with the host state.

Foreign investment has increasingly become an integral part of the world economy. In developing countries, major infrastructure projects and the exploitation of natural resources often require financing by and technical know-how of private foreign investors. Even in developed countries, the share of foreign investment in the GNP is significant.8 The investment may be considerable which may need years for the investor to recover. In developing countries foreign investment often relates to core components of the national economy. These factors make foreign investment particularly vulnerable to possible interference by the host state.

Foreign Investments can be broadly classified into two categories; Foreign Direct Investment (FDI) and Foreign Portfolio Investment (FPI). The two, though source of the same foreign investment differ substantially in their features and impact. FPI generally refers to the investment made by a foreign investor in the liquid assets of a business enterprise in another country, be it bonds, debentures, shares or other different kinds of securities. On the other hand, FDI refers to the investment made in a existing business enterprise in another country or in a completely new one that accords a substantial interest in such enterprise. The role of investors in extremely active in case of FDI but it takes a back seat in case of a FPI. Foreign Direct Investments usually are made for long period of time and FPI has relatively shorter span of time. Accordingly, the amount of capital inflow in case of FDI is significantly higher than in the case of FPI. That is why as far as attracting capital from beyond the border goes FDI is far more impactful and hence is pursued with much more vigour than any other form of investment.

Another factor which corroborates the need for having investor protection is the fact that in any country, its government keeps on changing at both the federal or central level and at the state or provincial level, sometimes simultaneously. This flux in the administration and government always remains a caveat for potential investors as, following the change in government, the new leaders of the new government may not be as inclined as the leaders of the incumbent government to make good on the promises made by the former. Not only this, the new government may also make various economic decisions, change their policies regarding tax leeway given to the foreign companies or on land rent, or may altogether ask the investor who has a stake in a company to move out or shift their establishment elsewhere.

Now for each and every such dispute arising out of any decision taken by the government which may drastically affect the business of the investor and cause actual damage, one cannot expect that state of the investor will take it up with the host state. This where the concept of investment treaties come in which provide investor protection to the multitude of investments in a particular host state.

While clear cut nationalisations are rare there are a number of other measures of a lower threshold which may affect foreign investment, such as currency restrictions preventing repatriation of profits, prohibitions on price increases, tax increases or new taxes and environmental legislation. To create a favourable climate for foreign investment, and to protect their own citizens, states have entered into large numbers of bilateral and multilateral treaties. International organisations have been established and have engaged in promoting international or regional treaties and conventions providing a stable framework for investment in an effort to create a worldwide standard for the treatment of foreign investment.

Although this effort has finally failed, there are a number of regional or bilateral treaties which aim to promote and protect foreign investment, including the Lome Agreements, North American Free Trade Agreement (NAFTA), and the Energy Charter Treaty9 10. In order to encourage foreign investment some countries have implemented specific investment laws to provide the necessary legal certainty sought by investors.Investment protection legislation can be found in nearly all the Commonwealth of Independent States and most developing countries.

In these efforts to promote and protect investment the issue of dispute resolution has been of crucial importance. Investors usually have little faith in the courts of the host country. With sensitive infrastructure projects investors are concerned they may not be able to protect their investments. On the other hand states are rarely willing to submit to foreign courts.

For these reasons arbitration has played a prominent role in the settlement of investment disputes. Ad hoc arbitration proceedings in the aftermath of the expropriation of oil concessions have greatly contributed to developing and shaping the laws on investor protection11. Most of the international conventions provide for arbitration as the preferred method of dispute settlement. In general they either provide for ad hoc arbitration under the UNCITRAL Rules or under the rules of an acceptable arbitration institution, e.g. ICC. SCC and in particular ICSID.12 In addition, some treaties, such as NAFTA, also devise their own arbitration system to take account of the particular circumstances.13

3. WHAT IS INVESTMENT ARBITRATION OR INVESTMENT TREATY ARBITRATION?

“Investment arbitration is a procedure to resolve disputes between foreign investors and host States (also called Investor-State Dispute Settlement or ISDS).”14

3.1 Meaning

The knowledge that a foreign investor will be able to sue the host State is an assurance on the part of the foreign investor that, in case any dispute arises between them, it will have guaranteed access to external arbitration establishment which will have the jurisdiction and who will have independent and qualified arbitrators who will preside over, resolve the dispute and write an award which will be enforceable under the terms of the agreement/treaty. Once such assurance is achieved in the form of an investment treaty affording different kinds of investor protection (these will be discussed in the later part of this paper) the foreign investor would be more than inclined to put in investments for a long duration of time.

Investor State Dispute Settlement (ISDS) was originally conceived with the aim of protecting the foreign investors from arbitrary decisions of the host state's government but it has now paved way towards providing investment opportunities to interested parties with the aim of deriving profit and has led to an overall increase in the quantum of Foreign Direct Investment (FDI) received by the host state.

This provides the foreign investor the ability to do what cannot be done in case of an International Commercial Arbitration (ICA), i.e being able to circumvent the jurisdiction of the host state that could be perceived to be biased or marred by lack of independence from vested interests of the host state, and to know that the dispute will be resolved according to the different principles governing International Investment Agreements (IIA) or under the protection offered by various international treaties.

3.2 Difference Between International Commercial Arbitration (ICA) and Investment Arbitration/Investment Treaty Arbitration

Investment disputes differ in several respects from ordinary commercial disputes. Frequently the amount in dispute is remarkable and the issues may have considerable political implications. Disagreements often concern the objectives of the investment, the repatriation of revenues and the ultimate control and benefit of the investment. The investment may relate to vital infrastructure the completion of which is of significant importance for the national economy. The outcome of the dispute may also affect the general investment climate in a country. In addition, one party is a state vested with sovereign powers, which is nevertheless in need of foreign investment and is bound by international instruments.

These factors influence the conduct of the arbitration in various respects. In the composition of the tribunal the nationality of the arbitrators may become a more important issue than in ordinary commercial arbitrations. Concerning the applicable substantive and procedural laws there is a much stronger tendency to delocalise and apply principles of international law. Investment disputes can have a greater impact on parties other than those involved and thus may be more in the public domain. Investment disputes may relate to legislation which not only affects a specific investor but a complete class of investors, the relationship between the host state and the investor's home state.

Recognising these diverse interests in the proceedings between Methanex Corporation v. United States the tribunal under NAFTA Chapter 11 allowed the submission of amicus curia briefs by non parties.15 It considered that in the absence of an express prohibition the decision on whether to allow such briefs fell within the tribunal's procedural powers in' accordance with Article 15(1) UNCITRAL Rules. In exercising its discretion the tribunal took into account several factors, in particular the public interest in the case. This greater public interest is also evidenced by the policy adopted in relation to the publication of awards which is much more liberal than in commercial arbitration.16

The greatest difference to commercial arbitrations is the source of the tribunal's power. Commercial arbitrations require an arbitration agreement between the parties. By contrast, in investment disputes arbitration may also be possible without such an arbitration agreement in the ordinary sense. National legislation or treaties may give each party the right to initiate arbitration proceedings against the other. There may even be no contractual relationship between the parties at all which has led to labelling investment arbitration “arbitration without privity.”17

Investment arbitrations are frequently based on provisions in national investment protection laws or international treaties by which the state agrees generally to arbitrate investment disputes. These provisions constitute a unilateral standing offer to the public to submit to arbitration with any party fulfilling the requirements. The offer is accepted by the investor when it initiates arbitration proceedings against the state.8 Until that time the investor is not bound to arbitrate and the state cannot initiate proceedings against the investor.

Disputes on jurisdiction are often not about interpreting a contract between the parties. Rather the tribunal will interpret the statutes, treaties and conventions, to see whether the dispute falls within the ambit of the state's obligation to arbitrate in these instruments. Consequently, the nationality of the investor is often an issue of the utmost importance, since the offer to arbitrate may only extend to nationals of certain countries. Investments are frequently done by local special purpose companies to meet the requirements of local participation and consortia are structured in a way to allow maximum profits and tax advantages. When a dispute arises it may be necessary to determine who is the actual investor: the local company, its direct shareholders or someone further down the line of ownership and control.

In the case of International Commercial Arbitration, the job of the arbitral tribunal is to judge the existing contract between the parties, meaning its nature, intent to arbitrate, conclusion, performance and termination, on the other hand, in the case of an Investment Arbitration or Investment Treaty Arbitration, the job of the arbitral tribunal is more complicated. It is required to make findings related to the recent behaviour of the host state which may include but is not limited to, change in its policies, tax regime, internal regulations having an influence on the business of the foreign investor, in the host state. Whether any such flux caused by the host state created a drastic effect on the investment or the business of the foreign investor which has resulted in a loss being accrued on the investor's part.

Many states have adopted investment protection laws. Their objective is to provide an investor friendly environment and attract foreign investment by guaranteeing certain minimum standards, including national treatment, no discrimination and no expropriation without fair compensation. These national laws usually provide for arbitration as a means of dispute settlement. Unlike bilateral or multilateral treaties, the provisions contained in national investment protection laws generally extend to all foreign investors. Such provisions may in effect contain an open offer to arbitrate disputes with the foreign investor. Nevertheless states have in several cases challenged the jurisdiction of tribunals in arbitration proceedings initiated on the basis of investment protection laws.

3.3 Consent of the Host State for entering into Investment Arbitration

In order for a foreign investor to be able to initiate arbitration proceedings in relation to an investment dispute the host state must already have agreed to be a party in any such arbitration proceedings to ensue in future. This consent could be obtained in different forms, through different kinds of investor protection treaties, free trade agreements, bestowing of one nation, ‘Most Favoured Nation' status by another etc. These various forms of treaties and agreements are summarized as follows.

3.3.1 Bilateral Investment Treaties (BITs)

Bilateral investment treaties, or BITs, are a more focused continuation of the practice of concluding bilateral treaties governing “friendship, commerce and navigation”.18 The main objective behind the formation of BITs was to accord investor protection which would then in turn result in the promotion of cross border trade between states and foreign investors. This would enable the nationals of one contracting state to freely invest in the territory of another contracting state without any inhibitions. Virtually every country that benefits from inward foreign investments, from Albania to Zimbabwe, has concluded one or more BITs that provides for the substantive and procedural legal protections.19 The first Bilateral Investment Treaty was signed and entered into between Pakistan and Germany in the year 195920. Other Western European governments soon began concluding BITs with selected developing States. Since 1990 however, an explosive growth in the number of BITs worldwide has revolutionized the protection of foreign investments. In addition to the BIT programs established by Western States, developing and transition economy States have embraced BITs in order to encourage foreign investments, both from industrialized States and among themselves.21 Today, around 3,000 BITs have been signed, covering countries in practically every region of the world.22

Bilateral Investment Treaties (BITS) have proliferated over the last three decades and are an effective and well used mechanism to guarantee protection of foreign investments.23 In addition to substantive rules they usually contain dispute resolution provisions for certain defined categories of investments, invariably providing for arbitration. The scope and the content of these clauses differ considerably, depending on the states involved and their respective bargaining power. In the majority of cases they constitute a unilateral offer by the state involved to all investors from the other State party to settle disputes by arbitration. Some, however, only contain declarations of intent to make such offers in the future.24 Some BITS provisions cover all types of disputes under a very wide definition of investment; others only cover certain types of disputes, for example, those relating to expropriation or specific types of investment.25 Often the exhaustion of local remedies is made a prerequisite for the right to arbitration.

Differences not only exist in the scope of investor protection provided in each BIT, but the type of arbitration provided for will also vary. Frequently the clauses provide for ICSID arbitration, or give the investor a choice between ICSID and other institutions such as the ICC, the AAA or the SCC. Often arbitration is the final stage in a multi-tier dispute resolution clause, providing first for negotiations or other diplomatic efforts to settle the dispute amicably.26 There have been numerous arbitration proceedings, which are based on provisions in BITs.27

3.3.2. Free Trade Agreements (FTA)

A Free Trade Agreement is a settlement or agreement between at least two countries to decrease boundaries to imports and fares among them. Under an organized commerce strategy, products and ventures can be purchased and sold crosswise over worldwide outskirts with almost no administration duties, quantities, endowments, or restrictions to restrain their trade.

One of the most important and prominent Free Trade Agreements is the North American Free Trade Agreement (NAFTA). In December 1992, Chapter 11 of the North American Free Trade Agreement (NAFTA) provided different sorts of investor friendly provisions similar to those that can be found in BITs. From that point forward, in excess of 15 other multilateral and reciprocal facilitated commerce understandings have been finished up all through the Americas (and past) that incorporate substantive and procedural investment protection arrangements proportional to those of BITs. The arrangements on interest in many organized commerce understandings pursue the exceptionally definite example of NAFTA's venture part. The substantive arrangements require cautious correlation with the guidelines overseeing other topics, for example, fund and acquisition. The procedural arrangements incorporate mind boggling conditions for submitting debates to discretion and permit the support of "non-contesting States" in the intervention procedures. Despite their multifaceted nature, the speculation arrangements of facilitated commerce understandings offer a well-attempted and successful methods for securing ventures.

3.3.3 The Energy Charter Treaty

The Energy Charter Treaty (ECT) is an multinational investment agreement which has established a multi-dimensional framework for across the border cooperation in the energy industry. The treaty covers all parts of business energy exercises including exchange, travel, ventures and energy proficiency. The treaty is legitimately official and incorporates question goals methodology.

At first, the Energy Charter process planned to incorporate the energy divisions of the Soviet Union and Eastern Europe toward the finish of the Cold War into the more extensive European and world markets. Its job, in any case, reaches out past East-West participation and, through legitimately restricting instruments, endeavors to advance standards of transparency of worldwide energy markets and non-separation to invigorate outside direct speculations and worldwide cross-fringe exchange. Grants and settlements of the universal assertions set forward by violating the law of the Energy Charter Treaty are in some cases are as high as hundreds of millions of dollars.

The 1994 Energy Charter Treaty (ECT) appeared as an outcome of the disintegration of the Soviet alliance and the resulting opening of the energy advertise in Eastern Europe and Central Asia. ECT arrangements on the protection of energy-related ventures, which parallel those of BITs, reflect the requirement for a steady and even legitimate system for improvement in the energy sector. Having gone into power in April 1998, in excess of 50 States (in addition to the European Union) are currently gathering to the ECT28. The ECT's speculation arrangements reflect a typical want for straightforwardness, security and participation in the energy sector. Arbitral councils have in a few announced cases applied the ECT's venture protections, giving effective cures and alternatives.

3.3.4. The Asean Comprehensive Investment Agreement

The Association of Southeast Asian Nations (ASEAN) is a territorial gathering for collaboration chiefly in territories concerning monetary advancement. The 1987 ASEAN Agreement on the Promotion and Protection of Investments was an antecedent to other multilateral investment bargains. It has since been supplanted by the ASEAN Comprehensive Investment Agreement (ACIA) which went into force on 29 March 2012.29 The ACIA contains the vast majority of the legitimate securities ordinarily associated with BITs, alongside the privilege of investors to submit investment disputes to the International Center for Settlement of Investment Disputes (ICSID) for assertion. Notwithstanding, this painstakingly drafted settlement agreement incorporates various confinements, specifically by requiring, where material, explicit endorsement by the skilled State authority and by restricting the plausibility of "bargain shopping" (by envisioning the probability of States to preclude the advantages from securing the arrangement to particular sorts of investments). Investors expecting to take benefit the insurance of this arrangement in like manner need to take specific consideration to guarantee that their investments fall inside the extent of safeguard accorded under this settlement

3.3.5. Human Rights Treaties

Different source of Investments relate to some form of property directly with respect to the speculator. The security of investments in this manner covers with the insurance of the privilege to the quiet happiness regarding property, as perceived in different human rights settlements. This correct will be locked in at whatever point property has been seized, truth be told or in law, without adequate pay. In this manner, for instance, the European Convention on Human Rights ensures the right to enjoy in assets to corporate elements similarly as it does to people.

3.4 Various Arbitral Institutions that conduct Investment Arbitration

There are different arbitration institutions all over the world that conduct arbitration proceedings. These institutions are recognized as arbitration hub worldwide and conduct various types of arbitration proceedings. These also include investment arbitration. These are dedicated arbitral institutions that have an extremely well organized team that handles high profile arbitrations ranging from few hundred million to billions of dollar worth of arbitration. They have their own panel of arbitrators each specializing in different kinds of disputes dealing with different subject matters. Some of the prominent arbitral institutions are below.

3.4.1. International Chamber of Commerce, Paris

The International Chamber of Commerce is the biggest, and the most unique corporate entity in the world. The memberships of ICC includes hundreds or firms/companies/organizations from different corners of the world. The ICC's has a global connected net of talented individuals and people with special knowledge, skill and know­how which belong to each of their specific field and keep the organization and all its other participants in the loop of all the business that is in their domain of work. They also maintain contact with the United Nations, the World Trade Organization, and other intergovernmental agencies. The ICC was founded in Paris, France in 1919. The organization's international secretariat was also established in Paris, and its International Court of Arbitration was formed in 1923.30

[...]


1 — ‘What is Arbitration?', WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO), at https://www.wipo.int/amc/en/arbitration/what-is-arb.html, (last accessed 16 November 2019).

2 The Arbitration and Conciliation Act, 1996, s.2(1)(f).

3 — ‘ Foreign Direct Investment (FDI) Definition' INVESTOPEDIA, at https://www.investopedia.com/terms/f/fdi.asp, (last accessed 16 November 2019).

4 Tojo Jose, ‘What is Foreign Portfolio Investment (FPI)? Who is a Foreign Portfolio Investor?' (2016) IndianEconomy, at https://www.indianeconomy.net/splclassroom/what-is-foreign-portfolio-investment-fpi- who-is-a-foreign-portfolio-investor/, (last accessed 16 November 2019).

5 Dave Carpenter, ‘12 Wealth and Investing Quotes Everyone Should Read' (2017) ALTAIR, at https://altairadvisers.com/wealth-investing-quotes/, (last accessed 15 November 2019).

6 INVESTMENT | meaning in the Cambridge English Dictionary', Cambridge Dictionary, available at, https://dictionary.cambridge.org/dictionary/english/investment, (last accessed 14 November 2019).

7 — ‘Ease of Doing Business Rankings' (2020) THE WORLD BANK, at https://www.doingbusiness.org/en/rankings, (last accessed 15 November 2019).

8 — ‘Handbook of statistics' (2017) UNCTAD at https://unctad.org/en/PublicationsLibrary/tdstat42_en.pdf, (last accessed 15 November 2019).

9 J D M Lew, L A Mistelis, S M Kroll, Comparative International Commercial Arbitration, Wolters Kluwer India, New Delhi, 2007, p. 762.

10 Walde, “Investment Arbitration Under the Energy Charter Treaty - From Dispute Settlement to Treaty Implementation”, Arbitration International, Vol. 12, No. 4, (1996), pp. 429-466.

11 J D M Lew, L A Mistelis, S M Kroll, Comparative International Commercial Arbitration, Wolters Kluwer India, New Delhi, 2007, p. 763.

12 A.R. Parra, “Provisions on the Settlement of Investment Disputes in Modern Investment Laws, Bilateral Investment Treaties and Multilateral Instruments on Investment”, (1997) 12 ICSID Rev.-FILJ 287.

13 J D M Lew, L A Mistelis, S M Kroll, Comparative International Commercial Arbitration, Wolters Kluwer India, New Delhi, 2007, p. 764.

14 — ‘Introduction to Investment Arbitration' International Arbitration Information, at https://www.international-arbitration-attorney.com/investment-arbitration/, (last accessed 14 November 2019).

15 ls Methanex Corporation v. United States, 4 Int ALR N-3 (2001).

16 Cheri D. Eklund, 'A Primer on the Arbitration of NAFTA Chapter Eleven Investor-State Disputes' (1994) 11 Journal of International Arbitration, Issue 4, pp. 135-171.

17 Jan Paulsson, Arbitration Without Privity, ICSID Review - Foreign Investment Law Journal, Vol. 10, (1995), p. 232-257.

18 — ‘Investment Treaty Arbitration: A Primer' (2013), LATHAM & WATKINS, at https://m.lw.com/thoughtLeadership/LW-investment-treaty-arbitration-primer, (last accessed 13 November 2019).

19 Ibid.

20 — ‘Bilateral Investment Treaties 1959-1999' (2000) UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT (UNCTAD), at https://unctad.org/en/Docs/poiteiiad2.en.pdf, (last accessed 15 November 2019).

21 — ‘Investment Treaty Arbitration: A Primer' (2013), LATHAM & WATKINS, at https://m.lw.com/thoughtLeadership/LW-investment-treaty-arbitration-primer, (last accessed 13 November 2019).

22 Ibid.

23 E M Obadia, ‘L' evolution de l'activite' du CIRDI', Rev Arb 633, (2001).

24 B M Cremades, ‘Arbitration in Investment Treaties: Public Offer of Arbitration in Investment Protection Treaties' available at https://www.cremades.com/pics/contenido/File634528980336478688.pdf, (last accessed 17 November 2019).

25 Jan Paulsson, Arbitration Without Privity, ICSID Review - Foreign Investment Law Journal, Vol. 10, (1995), p. 232-257.

26 J D M Lew, L A Mistelis, S M Kroll, Comparative International Commercial Arbitration, Wolters Kluwer India, New Delhi, 2007, p. 768.

27 Ibid.

28 —‘The Energy Charter Treaty' International Energy Charter, at https://www.energycharter.org/process/energy-charter-treaty-1994/energy-charter-treaty/, (last accessed 16 November 2019).

29 Johnny Wood, ‘What is ASEAN?' (2017) WORLD ECONOMIC FORUM at https://www.weforum.org/agenda/2017/05/what-is-asean-explainer/, (last accessed 18 November 2019).

30 —‘International Chamber of Commerce' International Chamber of Commerce at https://iccwbo.org/, (last accessed 16 November 2019).

Details

Seiten
68
Jahr
2020
ISBN (eBook)
9783346164551
ISBN (Buch)
9783346164568
Sprache
Englisch
Katalognummer
v583575
Note
Schlagworte
arbitration india investment

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Titel: Investment Arbitration. A plausible mechanism to sustain FDI in India