Why is it in the News?

While presenting the interim Union budget, Finance Minister Nirmala Sitharaman stated that India will be negotiating Bilateral Investment Treaties (BITs) with its trade partners to boost the inflow of foreign direct investment.

Background:

• India's economic terrain is undergoing a significant shift following the Finance Minister's announcement of plans to negotiate Bilateral Investment Treaties (BITs) during the interim Union budget presentation.
• This decision arrives at a critical juncture, coinciding with India's struggle to address declining levels of foreign direct investment (FDI) and the aftermath of adopting the 2016 Model BIT.
• Given these circumstances, it becomes imperative to explore the evolution of India's BITs, assess the implications of the 2016 model, and analyze the recent policy shift to gauge its potential impact on FDI.

Evolution of Bilateral Investment Treaties (BITs) in India:

• Origins of BITs in India (1990s): During the mid-1990s, India embarked on a significant economic policy shift by initiating Bilateral Investment Treaties (BITs) to attract foreign direct investment (FDI) and create an enabling environment for economic growth.
  • The primary aim was to demonstrate India's commitment to protecting investments made by individuals and companies from partner countries.
  • The signing of the first BIT between India and the UK in 1994 laid the groundwork for a series of agreements that would play a pivotal role in India's global economic integration.
• Expansion of BITs as Economic Diplomacy (Late 90s to 2000s): BITs in India evolved into strategic tools to mutually encourage and safeguard investments in each other's territories.
  • As India sought to position itself as a premier investment destination, these treaties became instrumental in signaling its dedication to safeguarding the rights and interests of foreign investors.
  • This period witnessed a proliferation of BITs, reflecting India's acknowledgement of the importance of foreign capital in stimulating domestic industries and infrastructure development.
• Emerging Challenges and Disputes (2010s): The significance of BITs became evident in 2010 with the settlement of the first-ever investor treaty claim in India.
  • Subsequent events, including the unfavorable award in the Australia-India BIT dispute (White Industries v Republic of India) in 2011, underscored the complexities and challenges associated with managing disputes arising from these agreements.
  • By 2015, India found itself embroiled in 17 known BIT claims, with the Cairn Energy Plc case being particularly notable.
  • These challenges prompted a critical reassessment of India's approach, leading to the adoption of the 2016 model BIT.
• Adoption of the 2016 Model BIT and Policy Shift: The adoption of the 2016 model BIT signalled a significant shift in India's approach to BITs.
  • It was viewed as a protective measure, resulting in the termination of numerous existing treaties.
  • However, the 2016 model BIT faced criticism for its exclusion of key international law principles, such as 'fair and equitable treatment' and 'most favoured nation.'
• Additionally, it introduced a requirement for investors to exhaust local remedies before resorting to international arbitration, potentially delaying the dispute resolution process.

Issues with the 2016 Model of BIT and their Consequences:

• Protective Nature: The introduction of the 2016 Model BIT marked a significant shift in India's approach to bilateral investment treaties, aiming for greater protection.
  • Positioned as a response to past disputes, it led to the termination of numerous existing treaties, signalling a desire to recalibrate engagement terms with foreign investors.
  • However, concerns arose about its potential impact on India's attractiveness as an investment destination.
• Absence of Key International Law Doctrines: Criticism was directed at the 2016 model BIT for deviating from established international law doctrines.
  • Notably, it lacked principles like "fair and equitable treatment" and "most favoured nation," raising doubts about fairness and protection for foreign investors.
  • This omission complicated the interpretation and enforcement of investment agreements, adding uncertainty for investors.
• Requirement for Exhausting Local Remedies: The 2016 model BIT introduced a requirement for investors to exhaust local remedies before pursuing international arbitration.
  • While this aimed to promote domestic dispute resolution, it created delays and challenges.
  • Investors found navigating local legal systems time-consuming and ineffective, potentially discouraging investment.
• Adverse Impact on FDI and Renegotiation Challenges: The consequences of the 2016 model BIT were evident in declining FDI in India.
  • FDI equity inflows dropped by 24% to $20.48 billion in April-September 2023, reflecting investor concerns.
  • The termination of existing treaties and challenges with the new model hindered India's ability to renegotiate terms, affecting its attractiveness to foreign investors.
  • The Cairn Energy Plc case, resulting in a significant award against India, highlighted the difficulties under the 2016 model BIT.

Government Recommendations and Policy Reforms Following Challenges with the 2016 BIT Model:

• Acknowledgement of Limitations and Policy Adjustment: Recognizing the constraints and hurdles posed by the 2016 Model BIT, the Indian government has signalled a shift towards more adaptable and practical strategies.
  • The announcement during the presentation of the interim Union budget, highlighting the negotiation of Bilateral Investment Treaties with trading partners, signifies a departure from rigid approaches.
  • This acknowledgement underscores the necessity for a nuanced approach that considers evolving international investment dynamics and global economic shifts.
• Parliamentary Standing Committee Proposals: In 2021, the Parliamentary Standing Committee on External Affairs proposed several key recommendations to reevaluate the existing BIT framework.
  • These recommendations aimed to tackle challenges associated with the 2016 model BIT and foster a more investor-friendly environment.
  • One notable recommendation emphasized the importance of timely dispute resolution through pre-arbitration consultations and negotiations.
  • This proactive stance aims to streamline the dispute-resolution process and alleviate pressure on both foreign investors and the Indian legal system.
• Addressing India's Contract Enforcement Ranking: India's low ranking in contract enforcement, currently at 163 out of 190, remains a significant concern.
  • Recognizing the link between an efficient legal framework and foreign investment attractiveness, recommendations from the Parliamentary Standing Committee serve as a call to action.
  • A timely review of treaties and alignment with global best practices becomes crucial to improving the ease of doing business, reinforcing India's commitment to fostering an investment-friendly climate.
• Free Trade Agreement (FTA) with the UK: As part of ongoing policy reforms, India is working towards finalizing a free trade agreement (FTA) with the UK.
  • This strategic endeavour has undergone over 14 rounds of negotiations, with disputes being a major obstacle.
  • The proposed FTA is expected to eliminate the requirement for exhausting local remedies, offering a mechanism for swift dispute resolution through international arbitration.
• This pragmatic approach acknowledges the importance of rapid dispute resolution in nurturing international trade relationships.

Conclusion

Achieving a $5 trillion economy hinges on robust international trade and secure investments in India. A forward-looking strategy for BITs is essential to attract and maintain long-term foreign investments, and the government's recent initiative is a positive move. Nevertheless, adopting a more tailored approach, rather than a one-size-fits-all model, is necessary to facilitate rapid yet sustainable growth in cross-border flows.