ARTICLE SUMMARY

India is all set to become the world's third largest construction market by 2022. It is interesting to observe that the Indian Government has repeatedly highlighted the significance of Maritime Infrastructure to the country's economy. Statistics state that 95% of India's trading by volume and 70% by value is done vis-à-vis Maritime transport. Keeping this in view and the opportunity to capitalise on the country's inherent maritime advantages, India envisages a strong futuristic infrastructure reflecting enormous potential for global investors. India has been active on the foreign direct investment front. The FDI inflow that is received in the construction development and infrastructure activity sectors, indicates the possibility of a dilemma. The exponential rise in the FDI investment, ushers in the probability of an exponential rise in the investment disputes that India will be exposed to. Till date, India has already been involved in 26 investment arbitrations as a respondent state yet it does not have any specialized dispute resolution mechanism in this regard. The paper aims to discuss how a bespoke investment arbitration structure is the need of the hour for this country. It aims to analyse the specialized investment dispute resolution mechanisms prevalent in the international domain and put forth suggestions for India's path to establish a robust investment arbitration mechanism.

Navigating the Murky Waters of Maritime Infrastructure Investment Arbitration in India – Need for a Tailored Mechanism

Introduction

India's enormous potential to be one of the leading attractions for Investments in the Maritime Sector is certainly not unknown to us. India's strategic position is instrumental for the same. The strategic location of India in the Indian Ocean along the world's busiest maritime route underlines the value of its shipping sector, which facilitates 95 per cent of India's foreign trade by volume.1 The Indian maritime sector benefits owing to two vital geographical factors: the country's 7,500-kilometer coastline and its strategic placement along most major shipping routes.2 Since time immemorial, these maritime routes have been deployed for ushering in trade and as a display of strategic might. In light of the all these factors aforementioned, this particular sector in India is all set to become "the engine of growth"3 by virtue of an enhanced GDP and a considerable increase in the trade volumes. India is in quest of investments worth US$81 billion to improve its maritime industry, which constitutes one of the key priorities for the country in order to hone its economic prominence and by enhancing the Indian Maritime Sector.4 As India looks forward to making itself a trans-shipment hub, with a vision to promote at least two ports to the top ten list in the globe, there has been a relentless commitment to enhance foreign direct investment in ports.5 This can especially be observed with the decision of constructing new ports to meet the trade requirements. India's maritime prowess shall be shaped further with the Maritime Vision 2030 which shall be strategic roadmap that shall further boost the performance and efficiency of the maritime sector. By fostering port-led industrialisation, Coastal Cargo development, and making Indian ports accessible and competitive for EXIM and Coastal Trade, the government intends to make maritime logistics significantly cost-competitive.6 Beginning with its welcome move to grant infrastructure status to shipyard industry back in 2016, the Maritime Sector of India is all set to grow in leaps and bounds. The government has also signed many Memorandums of Understanding with nations such as Korea and Egypt for port development, technology exchange, personnel training, and promoting stable expansion of maritime traffic.7 Ushering in a number of important initiatives, including the Sagarmala project, port modernisation, and development of inland waterways and coastal shipping, there has been a growing public-private collaboration in response to these efforts. This adds to the sector's dynamism and signals a renewed interest in its possibilities. This also implies that both public and private actors are more willing than ever to play a larger role.8 Clearly, this sector has emerged to be a lucrative recipient of investment inflows. However, it also becomes equally pertinent to carefully scrutinise the bottlenecks involved in its path to progress owing to it being projects that tend to be large-scale, capital-intensive, and take a long time to build. These infrastructural investments pose a veritable spectrum of risks. If long timelines of such infrastructure projects are considered along with its unpredictability and variability of many of the risks involved (such as commercial or demand risk), most infrastructure contracts will almost certainly need to be renegotiated at some point throughout their existence.9 Despite careful planning and exercise of due diligence, there is a high probability of disputes arising owing to the reasons mentioned herein above. In such situations having a robust dispute resolution structure can prove to be crucial for several reasons such as:

  1. Efficiency - which shall help in expediting the resolution of disputes since these are time-sensitive projects;
  2. Expertise - such complex and technical disputes require the involvement of experts in these fields who can assist in fair and efficient resolution of disputes;
  3. Clarity - in terms of process and outcome is required so as to reduce the risk of further disputes arising due to misunderstanding,
  4. Preservation of relationship – having a structure Dispute Resolution mechanism shall help the parties maintain their relationship which is pertinent for their future collaborations and partnerships.
  5. Regulatory Compliance – having a dedicated Dispute Resolution mechanism aids in the compliance of regulatory frameworks.

This highlights the necessity for a dependable and steadfast structure of arbitration that can be an efficacious and suitable mechanism to resolve such disputes that may arise.

Infrastructure investment in the Maritime Sector – a Genesis

Infrastructure can undoubtedly be termed as one of the strongest pillars of a growing and stable economy. Ever since the economic liberalization has taken place, there has been a deliberate attempt by the Indian Government to open opportunity for foreign investors by promoting infrastructure development. PPP or Public Private Partnerships have increasingly gained popularity in this regime owing to the mutual benefits both sides derive. Major infrastructure development requires a substantial flux of investment capital10. The current FDI policies of India reflect a clear realization of this fact by the government. The infrastructure sector received an inflow of US$ 2.5 trillion during the 12th Five Year Plan with an average of US $ 5 billion per annum.11 This serves as an additional enhancement to internal funding resources for the construction/infrastructure sector. In the recent times India has strived to revive its maritime sector through numerous attempts. One such event being the 2016 Global Maritime Summit at Mumbai which had over 5000 delegates from over 42 nations across the globe and transacted a business worth INR 82,905 Cr.12 The Sagarmala Programme which identified more than 574 port infrastructural, modernization and industrial project requires a funding of INR 6.01 lac crore.13 The major focus of maritime sector development shall be the infrastructure development of the ports. The Sagarmala Programme has already envisaged the construction of six new mega ports.14 It is thus, clear that there shall be requirement of mammoth investments from both internal as well as foreign sources. The Government has permitted FDI upto hundred percent in projects related to port construction and maritime infrastructure development15. This shall be with a 10-year tax holiday policy16. The FDI inflows in the year 2020 have risen by about 15 percent in comparison to its previous year17. With high value investments flowing in at this rate it is quite evident that the disputes related to investment too shall be on the rise. But a question to ponder upon is whether India is prepared with a bespoke system to deal with such a growing number of infrastructure investment disputes.

Investment Arbitration as the preferred dispute resolution mechanism

For an investor to be able to make high value investments in a foreign country, it is quite practical for him to have an assurance that in case a dispute arises in relation to the investment made by him, there is a fair legal procedure to resolve it. This is highly essential because, in absence of such an assurance it is unlikely that any foreign investor shall be willing to take the risk of investing a substantial sum. Investor-State Dispute Settlement or Investment Arbitration is the answer to this. Investment Arbitration basically refers to a kind of dispute resolution mechanism between the foreign investor and the host state18. It provides the foreign investor with the opportunity to resolve the dispute in an efficient manner without having to be entrapped in a national jurisdiction which might seem bias to him19. There are investment arbitration agreements through which the host States give their consent for the said dispute resolution mechanism. These agreements contain various provisions which act as substantive protections for the foreign investor. Even though every agreement has its own unique clauses and thereby unique substantive protections, there are a set of protections which are commonly available to foreign investors by the arbitral jurisprudence across the globe. Some of them being:

"i) just and equitable treatment;

ii) protection against expropriation;

iii) Most favoured nation treatment;

iv) Freedom to transfer funds;

v) National Treatment; and

vi) full protection and security."20

It is also pertinent to understand the initiation and process of an Investment Arbitration so as to understand how it is truly the most suitable method for investment dispute resolution. In most cases, as per their respective arbitration agreements, there is generally an initial cooling off period during which the investor and the state go through rounds of negotiations aiming to arrive at an amicable solution. Post which either the dispute is resolved or the investor has the choice to file a request for arbitration as per the governing rules. It is at this stage that the actual procedure of the investment arbitration begins. The investors have a choice to approach the domestic courts as well. However, the benefits offered by the out of court settlement mechanisms are generally found to be more suitable for the investors. The average time for the resolution of an investment arbitration is about three years which is very less when compared to the decades taken by domestic courts for resolving disputes.21 The hassle of domestic procedure and laws are also done away with if arbitration is adopted as the method for resolving the dispute. There are two kinds of investment arbitrations- i) Institutional; ii) Ad-Hoc. Institutional ones are those where the proceedings are done according to the rules of the Arbitration Institutions and are administered by them22. The leading institutions in terms of investment arbitration are International Centre for Settlement of Investment Disputes (ICSID), Stockholm Chamber of Commerce (SCC), Permanent Court for Arbitration (PCA), and the International Chamber of Commerce (ICC). Ad-Hocs proceedings are generally governed as per the UNCITRAL Arbitration Rules.

Drawing a close nexus with the global infrastructure investment dispute resolution frameworks

Infrastructural investments are instrumental in the process of long- term economic growth. Not only that, they are also vital for opening up emerging markets. There has been an exponential growth of economies across the world, beyond their domestic market. Thereby, making the global market more organised and regulated. The possibility still persisted that the host state government might control the foreign investor's investment. This worldwide growth mandated the need for implementation of fundamental safeguards in order to protect these foreign investors. Hence, in order to address the aforementioned issues, governments began to engage into formal agreements that provided crucial safeguards to foreign investors and investments.

Globally, it has been observed that Bilateral and Multilateral investment treaties in the guise of Investment protection regime, reinforced by the right to have recourse to an investment arbitration tribunal, in case of a breach, remain a critical component of reducing the risk of such investments.23

Challenges arise because these infrastructure investment projects, as discussed above, tend to be a long-term transaction. Moreover, are commercially and technically complicated undertakings. Each nation has its unique "cultural, legal, and regulatory subtleties" that must be thoroughly understood in connection to the risks and obligations of long-term contractual arrangements; in principle, from the beginning because as the project progresses, difficulties occur. When incoming foreign investors are unfamiliar with the host country's legal landscape, there is a need for interaction with state agencies, and that engagement comes either too late or not at all, issues will usually develop.24 Since projects of such kind, generally take months, if not years, to complete, and throughout that time the project is subject to policy decisions made by governments or authorities in the jurisdiction. Whether it's a power plant, a road system, or an airport with accompanying infrastructure, the asset being built, or created and then perhaps managed or transferred, will mostly become a substantial 'asset' inside the host country. In some instances, the 'asset' may draw the attention of the media, the general public, or the ruling administration. This might lead to investors being apprehensive that the government will put its own interests and those of its citizens ahead of those of foreign parties.

Treaties can provide investors with protection. If they qualify, foreign investors can seek remedy by filing claims with an autonomous international arbitration tribunal. Investors who have been affected can seek compensation or other remedies from the tribunal. As a result, most bilateral investment treaties (BITs) and multilateral investment treaties (MITs) allow for the resolution of any issues through investor–state dispute settlement mechanisms (ISDS), which constitutes international arbitration.25 These are instruments that facilitates protection and regulation of foreign investments. The first bilateral trade treaty (BIT) was signed in 1959 between Germany and Pakistan.

The Washington Convention founded the International Centre for Settlement of Investment Disputes in 1965. This marked the beginning of the BITs' journey. BITs have traditionally been conceived of only in terms of nationalisation, or the state's wrongful seizure of foreign property, or direct expropriation of foreign investor's property in the host country. Over time, international jurisprudence began to acknowledge interpretations of BITs that included indirect State activities that resulted in the deprivation of foreign investment and a breach of the minimum level of treatment as BIT violations.26 Most treaties provide for arbitration through the International Centre for Settlement of Investment Disputes (ICSID) or arbitration under UNCITRAL Rules.27 MITs and BITs have not been increasingly accepted in all states.

As the European Court of Justice (ECJ) recently decided in Slovak Republic v. Achmea BV, "investor–state arbitration between a Member State and an investor from another Member State is incompatible with EU law, even through the 'intra-EU BITs.' Investor–state arbitration clauses in EU bilateral investment treaties are not consistent with EU law and therefore have no legal impact, according to the court in that case."28

The tribunal in Salini v Morocco established the "Salini test," enunciating four key elements of an "investment" that must be present in order for the International Centre for the Settlement of Investment Disputes to have jurisdiction (ICSID). "They were (1) a commitment of money or assets; (2) a risk assumption; (3) an appropriate duration; and, (4) a contribution to the host State's economy."29

In the case of Borkowski v Armenia, that took place in August 2018, investors filed a claim under the bilateral investment treaty between Armenia and the United States of America (BIT). The issue concerns the building of the Southern Armenia Railway and High-Speed Road Projects, which the claimant had previously valued at around US$3 billion. Because of the political tensions on Armenia's eastern and western borders with neighbouring Turkey and Azerbaijan, the projects, which are part of the North-South Transport Corridor between Moscow and Mumbai, are particularly essential to Armenia. "The projects will provide the shortest transportation route from Black Sea ports to Persian Gulf ports, greatly lowering freight prices while also providing access to important natural resources. The public-private partnership's concession terms included specified exclusivity periods for feasibility studies and construction, with the possibility for the investors to renew for another 20 years. Borkowski and his firm Rasia contend in the arbitration that while they prepared to sell the exclusive concessions, Armenian officials threatened to seize them while concurrently providing third parties contractual rights over the projects." This is Armenia's third BIT claim, and given the projects' socio-political importance, it will be a case to keep an eye on.30

These notable cases demonstrate how investment treaty safeguards, supported by actionable rights to make claims against host states, provide investors with a public, impartial, and international arena to seek redress when those states fail to comply with their international responsibilities or obligations.

Demystifying the Current Conundrum

Articles 53 - 55 of the ICSID Convention provide for the rules governing the enforcement of International Investment Arbitration awards. It clearly lays down that the host states which are signatory to this convention are bound to enforce the rendered award within its territory as if it were a final judgement passed by a domestic court in the state and must ensure the enforcement of pecuniary obligations imposed in relation to the award31. Enforcement of investment arbitral awards in India is undoubtedly a herculean task. Even though it has signed several BITs, it is yet not a signatory to the ICSID Convention thereby the obligations imposed by the ICSID are far from having any binding capacity over India. However, this is not the only bottleneck present in the current Indian Investment Arbitration landscape. The ICSID Additional facility rules which offer arbitration in situations where one of the parties to BIT are not a signatory of the ICSID Convention have found their place in several BITs signed by India. The said rules provide arbitrations conducted only in New York Convention states and therefore, guarantee the enforcement of awards under the New York Convention Rules32. The situation is, however, not as simple as it seems. Attention may be drawn to Article 1(3) of the New York Convention which inter alia provides that state party to the said convention may restrict its applicability to awards passed in disputes arising out of relationships that are considered "commercial" under the domestic law of the governing state. India has been availing this reservation provided under the New York Convention. Therefore, an award to be enforced in accordance with the new york convention cannot be guaranteed unless the cause of the dispute for which an award has been passed under a BIT, is "commercial" under the Indian legal regime.

In order to understand or determine whether a BIT award can be said to arise out of a "commercial relationship" or not. A reference must be drawn to the view of the UNCITRAL Model Law, the Model BIT as well as the view taken by the Indian Judiciary. The UNCITRAL Model Law favours a wide interpretation of the term commercial as lays down a non-exhaustive list consisting of undertakings that can be termed as "commercial." It is noteworthy that, the word "investment" also finds a place in this list. Article 27.5 of Model BIT issued by the Department of Economic Affairs, Government of India provides any claim submitted to arbitration under this model BIT would be treated as "commercial", "for the purposes of Article 1 of the New York Convention"33. The Hon'ble Supreme Court has always favoured increasing the horizon of the term "commercial" under the 1996 Act. The decisions of the Apex Court in R.M. Investments and Trading Co. (P) Ltd. v. Boeing Co.34, Renusagar Power Co. Ltd. v. General Electric Co. (Renusagar)35 and Koch Navigation Inc. v. Hindustan Petroleum Corpn. Ltd.36make it clear that activities facilitating International Trade and promotion come within the purview of the term commercial under the Act of 1996. Therefore, it can be inferred that the BITs which promote international trade and development between party countries would have the differences giving rise to claims under it to fall within the ambit of the term, "commercial". The conundrum, however, remains owing to the conflict between the decisions of two High Courts of Country, namely, The High Court of Calcutta and The High Court of Delhi. The Hon'ble High Court of Calcutta, in the case of Board of Trustees of the Port of Kolkata v. Louis Dreyfus Armatures SAS,37 treated the BIT Arbitral Awards to be on the same pedestal as awards passed in commercial arbitrations. However, the Hon'ble High Court of Delhi took a contrary stand in the case of Union of India v. Khaitan Holdings (Mauritius) Ltd.38 and Union of India v. Vodafone Group Plc,39 where it considered awards under BIT to fall outside the ambit of "commercial transactions." The stand taken by the High Court of Delhi and India's decision of not signing the ICSID Convention may push away potential foreign investors from making substantial investments in India by creating a negative image about the lack of enforceability of Investment Arbitration Awards in India.

Key takeaways and the way forward

The two primary reasons behind India not being a signatory to the ICSID convention are as follows: 1) Perception of ICSID being biased towards developed nations 2) the inability of the Domestic Courts to review Investment Arbitration awards40. This has given rise to great uncertainty regarding the enforceability of arbitral awards passed in relation to BITs which requires immediate attention owing to the enormous amount of FDI which India is receiving and expects to receive in the near future as well. It has to be reiterated that the infrastructure development that the Indian Government has envisaged for the Maritime Sector requires a high inflow of Investment from foreign investors. A surge in the number of infrastructure investment disputes in the forthcoming days is not something unfathomable. The absence of a robust specialised regime for the enforcement of an arbitral award, not only hinders the growth rate of a developing economy like India but also, dilapidates India's dream of becoming an International Arbitration Hub. Immediate course correction is the need of the hour. The conflicting views taken by different High Courts has added to the confusion regarding the enforcement of investment arbitration award. There is an ardent need for the Supreme Court to step up and demystify this prevailing conundrum. India's signing of the ICSID Convention and the Judiciaries upholding the enforcement of investment arbitration awards in India would be significant milestones in its path to becoming a favoured infrastructure investment recipient nation. It shall also bring India a step closer to its dream of becoming the next International Arbitration Hub.

Footnotes

1. Naina Bhardwaj, Shipping Industry in India: Prospects for Foreign Investors, INDIA BRIEFING (Aug. 20, 2021), https://www.india-briefing.com/news/indian-shipping-industry-investment-opportunities-for-foreign-investors-22955.html/

2. Kishore Jayaraman, Indian maritime sector—on the cusp of revolution, FORBES INDIA (May 3, 2017, 11:11:53 AM), https://www.forbesindia.com/blog/economy-policy/indian-maritime-sector-on-the-cusp-of-revolution/

3. Kishore Jayaraman, Indian maritime sector—on the cusp of revolution, FORBES INDIA (May 3, 2017, 11:11:53 AM), https://www.forbesindia.com/blog/economy-policy/indian-maritime-sector-on-the-cusp-of-revolution/

4. Naina Bhardwaj, Shipping Industry in India: Prospects for Foreign Investors, INDIA BRIEFING (Aug. 20, 2021), https://www.india-briefing.com/news/indian-shipping-industry-investment-opportunities-for-foreign-investors-22955.html/

5. Megha Manchanda, Booster shot for maritime sector: Govt plans to de-risk ports, enhance FDI, BUSINESS STANDARD (May 19, 2020, 01:44 AM), https://www.business-standard.com/article/economy-policy/booster-shot-for-maritime-sector-govt-plans-to-de-risk-ports-enhance-fdi-120051800338_1.html.

6. Megha Manchanda, Booster shot for maritime sector: Govt plans to de-risk ports, enhance FDI, BUSINESS STANDARD (May 19, 2020, 01:44 AM), https://www.business-standard.com/article/economy-policy/booster-shot-for-maritime-sector-govt-plans-to-de-risk-ports-enhance-fdi-120051800338_1.html.

7. Kishore Jayaraman, Indian maritime sector—on the cusp of revolution, FORBES INDIA (May 3, 2017, 11:11:53 AM), https://www.forbesindia.com/blog/economy-policy/indian-maritime-sector-on-the-cusp-of-revolution/

8. Kishore Jayaraman, Indian maritime sector—on the cusp of revolution, FORBES INDIA (May 3, 2017, 11:11:53 AM), https://www.forbesindia.com/blog/economy-policy/indian-maritime-sector-on-the-cusp-of-revolution/

9.Fostering Investment in Infrastructure, OECD (Jan., 2015), https://www.oecd.org/daf/inv/investment-policy/Fostering-Investment-in-Infrastructure.pdf.

10. Jonathan Hook and Ravi Bhamidipati, Infrastructure in India: A vast land of construction opportunity, Pricewaterhouse Coopers (Oct. 05, 2021, 08.49 PM), https://www.pwc.in/assets/pdfs/infrastructure-in-india.pdf

11. Reena Agarwal, Review of Infrastructure Development and Its Financing in India, 24(1) Paradigm 119 (2020).

12. Anil Jai Singh, India's Maritime Economy: Driving India's Growth, INDIA FOUNDATION (Oct. 05, 2021, 09.04 PM), https://indiafoundation.in/articles-and-commentaries/indias-maritime-economy-driving-indias-growth/

13. Projects Under Sagarmala, Government of India, Ministry of Ports, Shipping and Waterways (Oct. 05, 2021, 09.24 PM), http://sagarmala.gov.in/projects/projects-under-sagarmala

14. Projects Under Sagarmala, Government of India, Ministry of Ports, Shipping and Waterways (Oct. 05, 2021, 09.24 PM), http://sagarmala.gov.in/projects/projects-under-sagarmala

15. Anil Jai Singh, India's Maritime Economy: Driving India's Growth, INDIA FOUNDATION (Oct. 05, 2021, 09.04 PM), https://indiafoundation.in/articles-and-commentaries/indias-maritime-economy-driving-indias-growth/

16. Anil Jai Singh, India's Maritime Economy: Driving India's Growth, INDIA FOUNDATION (Oct. 05, 2021, 09.04 PM), https://indiafoundation.in/articles-and-commentaries/indias-maritime-economy-driving-indias-growth/

17. Bhavana Sunder and Kshama A. Loya, Investment Arbitration and India: 2020 Year in Review, THE NATIONAL LAW REVIEW, (Oct. 05, 2021, 09.43), https://www.natlawreview.com/article/investment-arbitration-and-india-2020-year-review

18. Gustavo Laborde, The Case for Host State Claims in Investment Arbitration, 1(1) Journal of International Dispute Settlement 97, 98-99 (2010)

19. Gustavo Laborde, The Case for Host State Claims in Investment Arbitration, 1(1) Journal of International Dispute Settlement 97, 98-99 (2010)

20. Introduction to Investment Arbitration, International Arbitration Information by Aceris Law LLC (Oct. 07, 2021, 08:29 PM), https://www.international-arbitration-attorney.com/international-arbitration-information/

21. Faraz Alam Sagar and Samiksha Pednekar, International Investment Arbitrations and International Commercial Arbitrations: A Guide to the Differences, INDIA CORPORATE LAW - A CYRIL AMARCHAND MANGALDAS BLOG (Oct. 07, 2021, 08:37 PM), https://corporate.cyrilamarchandblogs.com/2019/05/international-investment-arbitrations-international-commercial-arbitrations-guide-differences/

22. David Gaukrodger and Kathryn Gordon, Investor-State Dispute Settlement: A Scoping Paper for the Investment Policy Community, OCED (Oct. 07 2021, 08.47 PM), http://dx.doi.org/10.1787/5k46b1r85j6f-en

23.Investment disputes in construction and infrastructure, NORTON ROSE FULBRIGHT (May, 2019), https://www.nortonrosefulbright.com/en/knowledge/publications/36fb04c8/investment-disputes-in-construction-and-infrastructure.

24. Simon Hughes QC, The Investment Treaty Arbitration Review: Investment Treaty Arbitration: Construction and Infrastructure Projects, THE LAW REVIEWS (June 18, 2021), https://thelawreviews.co.uk/title/the-investment-treaty-arbitration-review/investment-treaty-arbitration-construction-and-infrastructure-projects.

25. Simon Hughes QC, The Investment Treaty Arbitration Review: Investment Treaty Arbitration: Construction and Infrastructure Projects, THE LAW REVIEWS (June 18, 2021), https://thelawreviews.co.uk/title/the-investment-treaty-arbitration-review/investment-treaty-arbitration-construction-and-infrastructure-projects.

26.Bilateral Investment Treaty Arbitration and India, NISHITH DESAI ASSOCIATES (Feb. 2018), https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/Bilateral_Investment_Treaty_Arbitration_and_India-PRINT-2.pdf.

27. Introduction to Investment Arbitration, International Arbitration Information by Aceris Law LLC (Oct. 07, 2021, 08:29 PM), https://www.international-arbitration-attorney.com/international-arbitration-information/

28.Slovak Republic v. Achmea B.V. (Case C-284/16)

29.Salini v Morocco (ICSID Case No Arb/00/04) (Decision on Jurisdiction, 23 July 2001)

30.Borkowski and Rasia FZE v. Armenia (ICSID Case No. ARB/18/28)

31. ICSID Convention, Article 54.

32. Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes (Additional Facility Rules), Article 19

33. Department of Economic Affairs, Model Text for the Indian Bilateral Investment Treaty, Article 27.5

34. (1994) 4 SCC 541

35. (1984) 4 SCC 679

36. (1989) 4 SCC 259

37. 2014 SCC OnLine Cal 17695

38. 2019 SCC OnLine Del 6755

39. 2018 SCC OnLine Del 8842

40. Simon Weber, What Happened to Investment Arbitration in India? Kluwer Arbitration Blog (Oct. 9, 2021 12:00 AM) http://arbitrationblog.kluwerarbitration.com/2021/03/27/what-happened-to-investment-arbitration-in-india/

Subhadeepa is a student of CHRIST (Deemed to be University), Bangalore and Winner of the Finalist Prize of the 9th Ed. of Arb Excel Essay Writing Competition.

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