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India-UAE BIT: Key Changes and Implications UPSC NOTE

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  Recent Bilateral Investment Treaty (BIT) between India and the UAE The BIT between India and the UAE , signed earlier this year, replaces ...

 Recent Bilateral Investment Treaty (BIT) between India and the UAE

  • The BIT between India and the UAE, signed earlier this year, replaces the 2014 treaty and reflects India’s evolving investment treaty practices

  • It seeks to balance foreign investment protection with India’s right to regulate, addressing the challenges of investment disputes.

  • The treaty includes provisions to reduce the discretion of Investor-State Dispute Settlement (ISDS) tribunals, aiming for clearer and more predictable outcomes.

Key Departures from the Model BIT and Their Implications

  • The treaty requires investors to exhaust local remedies for three years before filing an ISDS claim (reduced from five years in India’s earlier Model BIT).

  • Implication: This shorter waiting period allows foreign investors faster access to ISDS, which may enhance investment protection.

  • The India-UAE BIT removes the requirement that foreign investments must be "significant for the host state's development," a subjective criterion in the Model BIT.

  • Implication: This makes it easier to define what constitutes an investment, reducing arbitral discretion and ensuring clearer investment protection.

  • The treaty specifies that state actions like denial of justice or breach of due process will amount to a treaty violation but without referencing customary international law (CIL).

  • Implication: This eliminates the vagueness associated with CIL, providing greater clarity for both investors and states and limiting arbitral discretion.

  • The treaty, like the Model BIT, does not include the most-favored-nation (MFN) provision, limiting non-discrimination in treatment.

  • State actions related to taxation are outside the scope of ISDS, meaning foreign investors cannot challenge tax measures under the BIT.

  • Implication: These provisions enhance India's regulatory autonomy but reduce the scope for investor protection in certain areas.

  • The BIT prevents ISDS tribunals from reviewing the "merits" of domestic court decisions, which could limit their ability to hear cases where domestic courts have already ruled.

  • Implication: This ensures that ISDS tribunals do not act as appellate courts, reinforcing the domestic judicial system’s primacy.

  • The BIT disallows third-party funding and excludes ISDS claims if fraud or corruption allegations are made against the investor.

  • Implication: This discourages frivolous claims and enhances the integrity of the dispute resolution process.

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Learnerz IAS | Concept oriented UPSC Classes in Malayalam: India-UAE BIT: Key Changes and Implications UPSC NOTE
India-UAE BIT: Key Changes and Implications UPSC NOTE
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