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Human rights protections in India’s Model BIT: a BIT left to go

  • Article
  • Published:
Indian Journal of International Law

Abstract

The growing interactions between international investment agreements and international human rights law are well studied. On the one hand, it is argued that there are several conceptual overlaps between human rights treaties and investment agreements. On the other hand, several authors point to tensions between these two bodies of law because of the limited space given to human rights, and other public interest concerns in investment agreements and investor-state arbitrations. This paper analyzes a specific interaction between international human rights law and international investment agreements in the Indian context: the balance that India’s 2015 Model BIT strikes between investor protections on the one hand, and India’s binding human rights commitments on the other. This paper outlines four sites of potential tension and how these tensions operate in practice – (i) scope for regulatory measures; (ii) investor obligations; (iii) dispute settlement procedures; and (iv) interpretative tools – and assesses the balance the 2015 Model BIT draws regarding each of these grounds. In each of these discussions, this paper references relevant literature and arbitral claims that have debated similar tensions.

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Notes

  1. White Industries Australia Limited v The Republic of India, UNCITRAL, Final Award (30 November fIndia was in violation of the following standards: (a) favourable conditions for investors (p. 88 onwards); (b) fair and equitable treatment (p. 91 onwards); (c) effective means of asserting claims (p. 105 onwards); (d) expropriation (p. 119 onwards); and free transfer of funds (p. 121 onwards).

  2. <http://www.ciarb.org.sg/blast/issue4/WhiteIndustries.pdf>.

  3. Article 4(2), India-Australia BIT, available at: <http://investmentpolicyhub.unctad.org/Download/TreatyFile/154>.

  4. I Kalnina, White Industries v The Republic of India: A Tale of Treaty Shopping and Second Chances, 4 TDM (2012) <www.transnational-dispute-management.com/article.asp?key=1861>; Ashutosh Ray, White Industries v Republic of India: A New Lesson for India, 29(5) J Intl Arbitration (2012) 623–636.

  5. <http://www.thehindu.com/opinion/op-ed/a-bit-for-the-state-a-bit-for-the-investor/article7625893.ece>. Law Commission of India, Report No. 260, Analysis of the 2015 Draft Model Indian Bilateral Investment Treaty (August 2015) [1.7] <http://lawcommissionofindia.nic.in/reports/Report260.pdf>. ‘As a result of the adverse White Industries award and the ITA notices under different BITs, there is renewed focus on India’s BIT programme.’

  6. <http://thewire.in/52022/remodeling-indias-investment-treaty-regime/>. The Dutch Government announces its receipt of India’s notice of termination of the India-Netherlands BIT here: <https://www.vno-ncw.nl/echo-berichten/echo-nr-51-opzegging-investeringsbeschermingsovereenkomst-ibo-door-india. http://www.hawker.com.bd/news_details_print.php?news_id=482759>.

  7. A full list of Indian BITS is available here: <http://finmin.nic.in/bipa/bipa_index.asp?pageid=2>; Grant Hanessian and Kabir Duggal, The 2015 Indian Model BIT: Is This the Change the World Wishes to See? 30(3) ICSID R (Fall 2015) 729, 731.

  8. There are reports of India and Brazil having concluded a BIT: <http://www.iareporter.com/articles/brazil-and-india-conclude-bilateral-investment-treaty/>.

  9. Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, A/HRC/8/5, 7 April 2008.

  10. See, for example: Raphael de Vietri, Incorporating Humanity and the Global Economy: The Law of International Investment and Human Rights, 15 Intl Trade & Bus L Rev (2012) 211; Nicolas Klein Human Rights and International Investment Law: Investment Protection as Human Right? 4 Goettingen J Intl L (2012) 1; T Nelson, Human Rights Law and BIT Protection: Areas of Convergence <https://www.skadden.com/sites/default/files/publications/Publications2368_0.PDF>.

  11. For general similarities, see: Raphael De Vietri, Incorporating Humanity and the Global Economy: The Law of International Investment and Human Rights, 15 Intl Trade & Bus L Rev (2012) 211; Campbell McLachlan, Investment Treaties and General International Law, 57(2) Intl Comp L Q (2008).

  12. It is not surprising, therefore, that arbitral tribunals have referred to human rights jurisprudence while making determinations on investors’ rights, including by using the right to property to frame their claims, in investor-state arbitrations. See Tecmed v Mexico used jurisprudence from the European Court of Human Rights, see Tecnicas Medioambientales Tecmed SA v The United Mexican States (Awards) (2003) IIC 247.

  13. For general writing on tensions, see: Kyla Tienhaara, Regulatory Chill and the Threat of Arbitration: A View from Political Science, in, Chester Brown and Kate Miles (eds) Evolution in Investment Treaty Law and Arbitration CUP, 2011); Emma Truswell, Thirst for Profit: Water Privatisation, Investment Law and a Human Right to Water, in, Chester Brown and Kate Miles (eds) Evolution in Investment Treaty Law and Arbitration(CUP, NY, 2011); Annika Wythes, Investor–State Arbitrations: Can the “Fair and Equitable Treatment” Clause Consider International Human Rights Obligations? 23 Leiden J Intl L (2010) 241–256; Kojo Yelpaala, Fundamentalism in Public Health and Safety in Bilateral Investment Treaties, 3 Asian J WTO & Intl Health L & Poly (2008) 235; Ioana Knoll-Tudor, The Fair and Equitable Treatment Standard and Human Rights Norms, in, Pierre-Marie Dupuy, Ernst-Ulrich Petersmann and Francesco Francioni (eds) Human Rights in International Investment Law and Arbitration (OUP, NY, 2009); Pierre Thielborger, The Human Right to Water versus Investor Rights: Double-Dilemma or Pseudo-Conflict?, in, Pierre-Marie Dupuy, Ernst-Ulrich Petersmann and Francesco Francioni (eds) Human Rights in International Investment Law and Arbitration (OUP, NY, 2009); Pierre-Marie Dupuy, Unification Rather Than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law, in, Pierre-Marie Dupuy, Ernst-Ulrich Petersmann and Francesco Francioni (eds) Human Rights in International Investment Law and Arbitration (OUP, NY, 2009); Daria Davitti, On the Meanings of International Investment Law and International Human Rights Law: The Alternative Narrative of Due Diligence, 12(3) Human Rights Law Review (2012) 421–453; Valentina Sara Vadi, Reconciling Public Health and Investor Rights: The Case of Tobacco, in, Pierre-Marie Dupuy, Ernst-Ulrich Petersmann and Francesco Francioni (eds) Human Rights in International Investment Law and Arbitration (OUP, NY, 2009); Moshe Hirsch, Investment Tribunals and Human Rights: Divergent Paths, in, Pierre-Marie Dupuy, Ernst-Ulrich Petersmann and Francesco Francioni (eds) Human Rights in International Investment Law and Arbitration (OUP, NY, 2009); Clara Reiner and Christoph Schreuer, Human Rights and International Investment Arbitration, in, Pierre-Marie Dupuy, Ernst-Ulrich Petersmann and Francesco Francioni (eds) Human Rights in International Investment Law and Arbitration (OUP, NY, 2009); Jeff Waincymer, Balancing Property Rights and Human Rights in Expropriation, in, Pierre-Marie Dupuy, Ernst-Ulrich Petersmann and Francesco Francioni (eds) Human Rights in International Investment Law and Arbitration (OUP, NY, 2009).

  14. F Francioni, Access to Justice, Denial of Justice, and International Investment Law, in, P-M Dupuy, F Francioni and E-U Petersmann (eds) Human Rights in International Investment Arbitration (OUP, Oxford, 2009); Bruno Simma, Foreign Investment Arbitration: A Place for Human Rights? 60 Intl Comp L Q (2011); Suzanne Spears, Making Way for the Public Interest in International Investment Agreements, in, C Brown and K. Miles (eds) Evolution in Investment Treaty Law and Arbitration (CUP, NY, 2011).

  15. For example, the case of Von Pezold v Zimbabwe challenged land reform measures by Zimbabwe, aimed at redistributing the land. These measures also had an impact on the rights of several indigenous communities. However, neither the investors nor the government raised arguments regarding indigenous persons’ rights. In a procedural order on the role of non-disputing parties, the Tribunal stated that ‘the Respondent has neither raised as a defence in these proceedings that it has obligations towards the indigenous communities under international law nor has it indicated that a submission from the Petitioners based on their Application may be relevant to factual or legal issues in these proceedings.’

  16. Bruno Simma, Foreign Investment Arbitration: A Place for Human Rights?, 60 Intl Comp L Q (2011).

  17. Other examples of IIAs can include Free Trade Agreements, Framework Agreements and partnership Agreements with investor protection chapters.

  18. See the full range here: <http://www.ohchr.org/EN/ProfessionalInterest/Pages/UniversalHumanRightsInstruments.aspx>.

  19. International Convention on the Elimination of All Forms of Racial Discrimination, 1969; International Covenant on Civil and Political Rights, 1976; International Covenant on Economic, Social and Cultural Rights, 1976; Convention on the Elimination of All Forms of Discrimination against Women, 1981; Convention on the Rights of the Child, 1990; Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 2002; Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 2002; Convention on the Rights of Persons with Disabilities, 2008.

  20. International Convention for the Protection of all Persons from Enforced Disappearance, 2010; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1987.

  21. P Ranjan, India and Bilateral Investment Treaties – a Changing Landscape, 29(2) ICSID R (2014), 419, 428.

  22. Reform of the IIA Regime: Four Paths of Action and a Way Forward, 3 UNCTAD IIA Issues Note (2014) <http://unctad.org/en/PublicationsLibrary/webdiaepcb2014d6_en.pdf> [“Reform of the IIA Regime”].

  23. UNCTAD, World Investment Report (2015) available at: <http://unctad.org/en/PublicationsLibrary/wir2015_en.pdf>, p. xi.

  24. Reform of the IIA Regime, at 4.

  25. Reform of the IIA Regime, p. 1. The other possible paths are (i) maintaining the status quo, largely refraining from changes in the way they enter into new IIA commitments; (ii) disengaging from the IIA regime, unilaterally terminating existing treaties or denouncing multilateral arbitration conventions; and (iii) implementing selective adjustments, modifying models for future treaties but leaving the treaty core and the body of existing treaties largely untouched.

  26. UNCTAD, World Investment Report (2015) available at: <http://unctad.org/en/PublicationsLibrary/wir2015_en.pdf>. UNCTAD reports that ‘Brazil, India, Norway and the European Union (EU) published novel approaches. South Africa and Indonesia continued their treaty terminations, while formulating new IIA strategies.’

  27. Ranjan, supra note 21.

  28. Draft India Model BIT (2015), available at: <https://www.mygov.in/group-issue/draft-indian-model-bilateral-investment-treaty-text/>. [“2015 Model BIT”]

  29. Law Commission of India, Report No. 260, Analysis of the 2015 Draft Model Indian Bilateral Investment Treaty (August 2015) [4.5.4]<http://lawcommissionofindia.nic.in/reports/Report260.pdf>.

  30. <http://pib.nic.in/newsite/PrintRelease.aspx?relid=133411>. The New 2015 Model BIT is available here: <http://finmin.nic.in/reports/ModelTextIndia_BIT.pdf>. According to a Press Release published by the Government of India: ‘The new Indian Model BIT text will provide appropriate protection to foreign investors in India and Indian investors in the foreign country, in the light of relevant international precedents and practices, while maintaining a balance between the investor’s rights and the Government obligations’ <http://pib.nic.in/newsite/PrintRelease.aspx?relid=133411>.

  31. <http://www.pib.nic.in/newsite/mbErel.aspx?relid=133411>.

  32. <http://pib.nic.in/newsite/PrintRelease.aspx?relid=133412>.

  33. G Hanessian and Kabir Duggal, The 2015 Indian Model BIT: Is This the Change the World Wishes to See? 30(3) ICSID Rev (2015) 729, 730.

  34. See, for example, L Peterson and K Grey, International Human Rights in Bilateral Investment Treaties and in Investment Treaty Arbitration <http://www.iisd.org/pdf/2003/investment_int_human_rights_bits.pdf>. They refer to Phillip Morris, who threatened Canada with arbitration if they introduced plain packaging laws for tobacco, as a result of which Canada changed its plans.

  35. Suzanne Spears, Making Way for the Public Interest in International Investment Agreements, in, C Brown and K Miles (eds) Evolution in Investment Treaty Law and Arbitration (CUP, NY, 2011).

  36. Also, in 2011, Phillip Morris Asia Limited filed notice of arbitration against Australia under the Hong Kong-Australia BIT. They argued that the Tobacco Plain Packaging Act 2011 ‘will result in the expropriation of PM Asia’s investments due to the substantial deprivation of the intellectual property and goodwill’ and that it would not be fair or equitable ‘given the substantial impairment of PM Asia’s investments, the lack of credible evidence that the measure will contribute to achievement of the legislation’s stated objectives, the availability of effective alternative means of reducing smoking prevalence, and the contravention of Australia’s international obligations under TRIPS.’ In December 2015, the Tribunal held it had no jurisdiction to hear PM Asia’s claim. (Phillip Morris Asia Limited v Australia, Award on Jurisdiction and Admissibility, UNCITRAL, PCA Case No. 2012-12 (17 December 2015) < http://www.italaw.com/sites/default/files/case-documents/italaw7303_0.pdf>.

  37. Philip Morris Brands Sàrl, Philip Morris Products SA and Abal Hermanos SA v Uruguay, Award, ICSID Case No ARB/10/7 (8 July 2016) [9] <http://www.italaw.com/cases/460#sthash.xP6qla7i.dpuf>. [“Philip Morris v Uruguay”]

  38. Philip Morris v Uruguay [12].

  39. Philip Morris v Uruguay, [13].

  40. Philip Morris v Uruguay, [307].

  41. Piero Foresti, Laura de Carli & Others v South Africa, Award, ICSID Case No. ARB(AF)/07/01 (4 August 2010) <http://www.italaw.com/cases/446#sthash.XWh9ckxy.dpuf>. [“Piero Foresti v South Africa”]

  42. Piero Foresti v South Africa [69].

  43. Piero Foresti v South Africa [25]. This was done pursuant to Articles 41(3), 27 and 35, and 39, respectively, of Schedule C of the Additional Facility Rules of the International Centre for Settlement of Investment Disputes as amended and effective 10 April 2006. The Petition for Limited Participation as Non-disputing Parties is available here: <http://www.italaw.com/sites/default/files/case-documents/ita0333.pdf>. [“Petition for Limited Participation”]

  44. Piero Foresti v South Africa [80].

  45. Azurix v Argentina, Award, ICSID Case No ARB/01/12 (14 July 2006) <http://www.italaw.com/sites/default/files/case-documents/ita0061.pdf>. [“Azurix v Argentina”]

  46. Azurix v Argentina [43].

  47. Azurix v Argentina [254].

  48. See full discussion of human rights angles of this case in Moshe Hirsch, Investment Tribunals and Human Rights: Divergent Paths, in, Pierre-Marie Dupuy, Ernst-Ulrich Petersmann, and Francesco Francioni (eds) Human Rights in International Investment Law and Arbitration (OUP, NY, 2009).

  49. <http://www.ohchr.org/Documents/Issues/Business/A-HRC-17-31_AEV.pdf>.

  50. See, Article 5, 2003 Model BIT, available at: <http://www.italaw.com/sites/default/files/archive/ita1026.pdf>.

  51. Article 8.12 (1), Canada-EU Comprehensive and Economic Trade Agreement, available at: <http://ec.europa.eu/trade/policy/in-focus/ceta/ceta-chapter-by-chapter/>.

  52. Annex 8-A [3], EU/CA/Annex/en 122, available at <http://data.consilium.europa.eu/doc/document/ST-10973-2016-ADD-3/en/pdf#page=64>.

  53. Article 5.3(b), 2015 Model BIT. This approach has been taken in the 2004 US Model BIT, Annex B [4], available at: https://www.state.gov/documents/organization/117601.pdf. See also, the Canada-EU Comprehensive and Economic Trade Agreement Annex 8-A [2], EU/CA/Annex/en 121, available at <http://data.consilium.europa.eu/doc/document/ST-10973-2016-ADD-3/en/pdf#page=64>.

  54. <http://www.biicl.org/files/3866_andrew_newcombe.pdf>.

  55. See, 2003 Model BIT, available at <http://www.italaw.com/sites/default/files/archive/ita1026.pdf>.

  56. See Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework (2011), available at <http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf>.

  57. The Ten Principles of the UN Global Compact, available at: <https://www.unglobalcompact.org/what-is-gc/mission/principles/principle-1>. The UN Global Compact is ‘a voluntary initiative based on CEO commitments to implement universal sustainability principles and to take steps to support UN goals.’

  58. OECD Guidelines for Multinational Enterprises, 2011 Edition, available at: <http://www.oecd.org/daf/inv/mne/48004323.pdf>.

  59. International Law Association, Rio De Janeiro Conference, International Law on Foreign Investment (2008).

  60. The Office of the High Commissions for Human Rights, Frequently Asked Questions about the Guiding Principles on Business and Human Rights, available att <http://www.ohchr.org/Documents/Publications/FAQ_PrinciplesBussinessHR.pdf>.

  61. Jun Zhao, Human Rights Accountability of Transnational Corporations: A Potential Response from Bilateral Investment Treaties, 8 JE Asia & Intl L (2015) 47.

  62. Report of the High Commissioner to the Sub-Commission on the Promotion and Protection of Human Rights, Human rights, trade and investment (E/CN.4/Sub.2/2003/9).

  63. Report of the Independent Expert on the promotion of a democratic and equitable international order, Alfred Maurice de Zayas, A/HRC/30/44, 14 July 2015.

  64. Article 12(1), 2003 Model BIT.

  65. The Draft 2015 Model BIT is available here <https://www.mygov.in/sites/default/files/master_image/Model%20Text%20for%20the%20Indian%20Bilateral%20Investment%20Treaty.pdf>.

  66. Article 12, Draft 2015 Model BIT.

  67. Law Commission of India, Report No 260, Analysis of the 2015 Draft Model Indian Bilateral Investment Treaty (August 2015) [4.5.4] <http://lawcommissionofindia.nic.in/reports/Report260.pdf>.

  68. Luke Eric Peterson and Kevin R Gray, International Human Rights in Bilateral Investment Treaties and in Investment Treaty Arbitration, A Research paper prepared by the International Institute for Sustainable Development (IISD) for the Swiss Department of Foreign Affairs (April 2003) <https://www.iisd.org/pdf/2003/investment_int_human_rights_bits.pdf>.

  69. Luke Eric Peterson and Kevin R Gray, International Human Rights in Bilateral Investment Treaties and in Investment Treaty Arbitration, A Research paper prepared by the International Institute for Sustainable Development (IISD) for the Swiss Department of Foreign Affairs (April 2003) <https://www.iisd.org/pdf/2003/investment_int_human_rights_bits.pdf>.

  70. See, Reiner and Schreuer, who say: ‘Lack of transparency and legitimacy are perhaps inevitable reproaches’ when arbitral tribunals adjudicate human rights concerns. Clara Reiner and Christoph Schreuer, Human Rights and International Investment Arbitration, in, Pierre-Marie Dupuy, Ernst-Ulrich Petersmann and Francesco Francioni (eds), Human Rights in International Investment Law and Arbitration (OUP, NY, 2009).

  71. For example, the UN Independent Expert on the promotion of a democratic and equitable international order has recommended: ‘All future international investment agreements should provide for the settlement of disputes not by investor–State dispute settlement but by the national courts or a special international investment court, explicitly bound by the recognition of the primacy of human rights, public interest and national sovereignty.’ See Report of the Independent Expert on the promotion of a democratic and equitable international order, Alfred Maurice de Zayas, A/HRC/30/44, 14 July 2015.

  72. Moshe Hirsch, Investment Tribunals and Human Rights: Divergent Paths, in, Pierre-Marie Dupuy, Ernst-Ulrich Petersmann, and Francesco Francioni (eds) Human Rights in International Investment Law and Arbitration (OUP, NY, 2009).

  73. Clara Reiner and Christoph Schreuer, Human Rights and International Investment Arbitration, in, Pierre-Marie Dupuy, Ernst-Ulrich Petersmann, and Francesco Francioni, Human Rights in International Investment Law and Arbitration (OUP, NY, 2009).

  74. However, Reiner and Schreuer have noted that ‘certain human rights violations, such as those related to the protection of the investor’s property, may at the same time constitute a breach a of particular treaty obligation and hence fall within the realm of the tribunal’s competence, thus providing access to investment arbitration.’ Clara Reiner and Christoph Schreuer, Human Rights and International Investment Arbitration, in, Pierre-Marie Dupuy, Ernst-Ulrich Petersmann, and Francesco Francioni (eds) Human Rights in International Investment Law and Arbitration (OUP, NY, 2009).

  75. For a summary of this case, see: <http://www.biicl.org/files/3935_1990_biloune_v_ghana.pdf>.

  76. For a summary of this case, see: <http://www.biicl.org/files/3935_1990_biloune_v_ghana.pdf>.

  77. Clara Reiner and Christoph Schreuer, Human Rights and International Investment Arbitration, in, Pierre-Marie Dupuy, Ernst-Ulrich Petersmann, and Francesco Francioni (eds) Human Rights in International Investment Law and Arbitration (OUP, NY, 2009).

  78. This is distinct from the law applicable to the interpretation of a BIT itself under Article 31 (3) (c) of the VCLT, which also includes ‘any relevant rules of international law applicable in the relations between the parties.’ This would apply to all BITs, and may include international human rights provisions in certain instances.

  79. See, for example, Raphael de Vietri, who says: ‘An international arbitrator will be able to take into account human rights law if, either human rights principles are contained in the applicable municipal law, or if the arbitrator has jurisdiction to consider the principles of public international law. The latter will only be the case if the wording of the compromissory clause laid down in the relevant IIA and/or the contract contains reference to public international law.’ Raphael de Vietri, Incorporating Humanity and the Global Economy: The Law of International Investment and Human Rights, 15 Intl Trade & Bus L Rev (2012) 211.

  80. Article 30, 2012 U.S. Model Bilateral Investment Treaty, available at: <http://www.state.gov/documents/organization/188371.pdf>.

  81. Article 42 (1), ICSID Convention states: ‘The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable,’ available at <https://icsid.worldbank.org/ICSID/StaticFiles/basicdoc/CRR_English-final.pdf>.

  82. Christoph Schreuer, Jurisdiction and Applicable Law in Investment Treaty Arbitration, McGill Journal of Dispute Resolution, 1(1) (2014)

  83. Agreement between the Government of Australia and the Government of the Argentine Republic on the Promotion and Protection of Investments, available at: <http://investmentpolicyhub.unctad.org/Download/TreatyFile/72>.

  84. Article 23 states: ‘The governing law for interpretation of this Treaty by a Tribunal constituted under this Article shall be: (b) the general principles of public international law relating to the interpretation of treaties, including the presumption of consistency between international treaties to which the Parties are party.’ This provision relates to how the BIT itself is to be interpreted, not what laws can apply to the disputes before the tribunal.

  85. Article 16.1 states: A disputing investor who meets the conditions precedent provided for in Article 15 may submit the claim to arbitration under: (a) the ICSID Convention, provided that both the Parties full members of the Convention; (b) the Additional Facility Rules of ICSID, provided that either Party, but not both, is a member of the ICSID Convention; or (c) the UNCITRAL Arbitration Rules.

  86. Article 42 (1), ICSID Convention states: ‘The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable,’ available at: <https://icsid.worldbank.org/ICSID/StaticFiles/basicdoc/CRR_English-final.pdf>.

  87. For more details, see James Harrison, Human Rights Arguments in Amicus Curiae Submissions: Promoting Social Justice?, in, Pierre-Marie Dupuy, Ernst-Ulrich Petersmann and Francesco Francioni (eds) Human Rights in International Investment Law and Arbitration ( OUP, 2009).

  88. Bernhard von Pezold and Others v Zimbabwe, Award, ICSID Case No ARB/10/15, Award (28 July 2015) <http://www.italaw.com/cases/1472#sthash.anYaAanH.dpuf>.

  89. Bernhard von Pezold and Others v Zimbabwe, ICSID Case No ARB/10/15, Procedural Order No 2 (26 June 2012) [14] <http://www.italaw.com/cases/1472#sthash.anYaAanH.dpuf> [Procedural Order 2]

  90. Procedural Order 2 [52].

  91. Procedural Order 2 [60].

  92. These include Methanex Corp v United States, UNCITRAL, Final Award on Jurisdiction and Merits, 3 (August 2005) <http://www.italaw.com/cases/683>; Glamis Gold v USA, Final Award (8 June 2009) <http://www.italaw.com/cases/487>; Suez/Vivendi v Argentina ICSID Case No ARB/03/19, Final Award (9 April 2015) <http://www.italaw.com/cases/1057>; and Biwater v Tanzania, ICSID Case No ARB/05/22, Procedural Order No 5, 2 (February 2007) <http://www.italaw.com/sites/default/files/case-documents/ita0091_0.pdf>. For more details, see: James Harrison, Human Rights Arguments in Amicus Curiae Submissions: Promoting Social Justice?, in, Pierre-Marie Dupuy, Ernst-Ulrich Petersmann and Francesco Francioni (eds) Human Rights in International Investment Law and Arbitration (OUP, NY, 2009). Reiner and Schreuer argue that this move towards allowing more amicus briefs is not motivated by human rights concerns, as much as ‘efforts to increase transparency and respond to public interest.’ Clara Reiner and Christoph Schreuer, Human Rights and International Investment Arbitration, in, Pierre-Marie Dupuy, Ernst-Ulrich Petersmann and Francesco Francioni (eds) Human Rights in International Investment Law and Arbitration (OUP, NY, 2009).

  93. Under Chapter 11, NAFTA, Methanex claimed compensation from the USA for losses allegedly borne by Methanex following California’s ban on the sale and use of the gasoline additive, MTBE. Whilst it was acknowledged that methanol provided California with clean air benefits, it posed a threat to groundwater and drinking water. Methanex argued that the cause of the groundwater pollution was leaking underground storage tasks for gasoline and not methanol per se. The measures taken by California, according to Methanex, were in rank protectionism of ethanol. Methanex argued violation of its investor protections of National Treatment, Full protection and security, and non-discriminatory treatment, and expropriation. These arguments were eventually rejected by the tribunal as studies had indicated that there were significant water contamination risks associated with the use of MTBE. In the words of the tribunal: ‘Methanex entered a political economy in which it was widely known, if not notorious, that governmental environmental and health protection institutions at the federal and state level, operating under the vigilant eyes of the media, interested corporations, nongovernmental organizations and a politically active electorate, continuously monitored the use and impact of chemical compounds and commonly prohibited or restricted the use of some of those compounds for environmental and/or health reasons.’ The tribunal found that ‘This policy was motivated by the honest belief, held in good faith and on reasonable scientific grounds that MTBE contaminated groundwater and was difficult and expensive to clean up.’

  94. Methanex Corp v United States, UNCITRAL, Final Award on Jurisdiction and Merits (3 August 2005) [26–27] <http://www.italaw.com/cases/683> [Methanex Final Award].

  95. Methanex Corp v United States, UNCITRAL, Decision of the Tribunal on Petitions from Third Persons to Intervene as “amici curiae” (15 January 2001) [29]. [Methanex Amicus Decision]

  96. Methanex Amicus Decision [31]. The tribunal relied on Note 5 of the Iran-US Claims Tribunal which stated that ‘The arbitral tribunal may, having satisfied itself that the statement of one of the two Governments - or, under special circumstances, any other person - who is not an arbitrating party in a particular case is likely to assist the arbitral tribunal in carrying out its task, permit such Government or person to assist this arbitral tribunal by presenting written and [or] oral statements.’ The tribunal also relied on jurisprudence of the WTO and the International Court of Justice.

  97. Methanex Amicus Decision [42].

  98. Methanex Amicus Decision [47].

  99. Methanex Amicus Decision [48].

  100. See Articles 2–6 of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, available at: <http://www.uncitral.org/pdf/english/texts/arbitration/rules-on-transparency/Rules-on-Transparency-E.pdf>. The rules recognize that ‘the need for provisions on transparency in the settlement of such treaty-based investor-State disputes to take account of the public interest involved in such arbitrations,’ and that ‘rules on transparency in treaty-based investor-State arbitration would contribute significantly to the establishment of a harmonized legal framework for a fair and efficient settlement of international investment disputes, increase transparency and accountability and promote good governance.’ In March 2015, the UN Convention on Transparency in Treaty-Based Investor-State Arbitration, also called the Mauritius Convention, was opened for signature.

  101. Samuel Levander, Resolving “Dynamic Interpretation”: An Empirical Analysis of the UNCITRAL Rules on Transparency, 52 Colum J Transnatl L (2014) 506.

  102. Article 22.1 states: Subject to applicable law regarding protection of confidential information, the Defending Party shall make available to the public the following documents relating to a dispute under this Chapter: a. the notice of dispute and the notice of arbitration; b. pleadings and other written submissions on jurisdiction and the merits submitted to the Tribunal, including submissions by a Non- disputing Party; c. Transcripts of hearings, where available; and d. decisions, orders and awards issued by the Tribunal.

  103. See Article 22.2 of the 2015 Model BIT.

  104. S Pahis, Bilateral Investment Treaties and International Human Rights Law: Harmonization through Interpretation (2012) 48 <http://www.icj.org/wp-content/uploads/2012/06/treaties-law-interpretation-themetic-report-2012.pdf>.

  105. Article 31(1), VCLT.

  106. Article 31(2), VCLT. C Schreuer, Diversity and Harmonisation in Treaty Interpretation and Investment Arbitration (2006) 1–2 <http://www.univie.ac.at/intlaw/pdf/cspubl_85.pdf>: Schreuer observes that tribunals have previously applied the VCLT to understanding BITs.

  107. The language is most often: ‘Desirous of creating conditions favourable for greater investments by investors of one Contracting Party In the territory of the State of the other Contracting Party;

    Recognising that the promotion and mutual protection of such investments will be conducive to the stimulation of business initiative and will increase prosperity In both States;’

    See also, Russia-India BIT, 1994; Germany-India BIT, 1995.

  108. Preamble, 2003 Model BIT, available at: <http://www.italaw.com/sites/default/files/archive/ita1026.pdf>.

  109. Max H Hulme, Preambles in Treaty Interpretation, 14 Univ Pennsylvania L R (2016) 1281, 1320, 1314–15.

  110. Max H Hulme, Preambles in Treaty Interpretation, 14 Univ Pennsylvania L R (2016) 1281, 1316. Reliance is placed inter alia on MTN Equity SDn. Mhd. and MTD Chile S.A. v. Republic of Chile, ARB/01/7, Award [113], in which the Tribunal states: ‘As regards the object and purpose of the BIT, the Tribunal refers to its Preamble where the parties state their desire “to create favourable conditions for investments by investors of one Contracting Party in the territory of the other Contracting Party”, and the recognition of “the need to protect investments by investors of both Contracting Parties and to stimulate the flow of investments and individual business initiative with a view to the economic prosperity of both Contracting Parties”. Hence, in terms of the BIT, fair and equitable treatment should be understood to be treatment in an even-handed and just manner, conducive to fostering the promotion of foreign investment. Its terms are framed as a pro-active statement –“to promote”, “to create”, “to stimulate”– rather than prescriptions for a passive behavior of the State or avoidance of prejudicial conduct to the investors.’

  111. Continental Casualty Company v Argentine Republic, ICSID Case No ARB/03/9, Award (5 September 2008) [258]; AWG Group Ltd v The Argentine Republic, Separate Opinion of Arbitrator Pedro Nikken – See more at: <http://www.italaw.com/cases/documents/112#sthash.KS9cj15y.dpuf> [29].

  112. <https://www.regjeringen.no/contentassets/e47326b61f424d4c9c3d470896492623/draft-model-agreement-english.pdf>. See also, United States-Uruguay BIT (2005), Preamble: ‘For example, the United States-Uruguay BIT states: “[d]esiring to achieve these objectives [such as reciprocal investor protection] in a manner consistent with the protection of health, safety, and the environment, and the promotion of consumer protection and internationally recognized labor rights.”’

  113. India-Trinidad and Tobago BIT (2007), Preamble; See also, Republic of Korea-Trinidad and Tobago BIT (2002), Preamble; Republic of Korea-China (2002), Preamble.

  114. Prabhash Ranjan, “Object and Purpose” of Indian International Investment Agreements: Failing to Balance Investment Protection and Regulatory Power, in, V Bath and L Nottage (eds) Foreign Investment and Dispute Resolution Law and Practice in Asia (Routledge, London, 2011) 192 [electronic version available at: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2418922>, p. 8. Ranjan observes that the differences in the preambles of the remaining Indian BITs are marginal. Ranjan, supra note 21, at 9.

  115. Draft Model India BIT 2015, Preamble, available at <https://www.mygov.in/sites/default/files/master_image/Model%20Text%20for%20the%20Indian%20Bilateral%20Investment%20Treaty.pdf>.

  116. Law Commission Report [2.1.5].

  117. Model India BIT, 2015, Preamble.

  118. Article 31(3), VCLT.

  119. S Pahis, Bilateral Investment Treaties and International Human Rights Law: Harmonisation through Interpretation, 19, 48 <http://www.icj.org/wp-content/uploads/2012/06/treaties-law-interpretation-themetic-report-2012.pdf>.

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Ambast, S. Human rights protections in India’s Model BIT: a BIT left to go. Indian Journal of International Law 57, 121–145 (2017). https://doi.org/10.1007/s40901-018-0073-z

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