Abstract
India’s 2016 Model Bilateral Investment Treaty (BIT) was partly prompted by the 2010 investor-state arbitration award for White Industries against India under the latter’s BIT with Australia, terminated by India in 2017 along with many other older BITs. India’s Model BIT is decidedly more pro-host-state in substantive commitments towards foreign investors, although still retains circumscribed investor-state arbitration provisions, and it may be complicating India’s negotiations for new Free Trade Agreements (FTAs). Australia is also reviewing its own older BITs, although its recent FTA investment chapters mostly retain a more conventional format. However, Australia’s FTA with Indonesia signed in 2019 includes an unusual provision allowing the host state to require the foreign investor to try mediation before proceeding with investor-state arbitration. So does the Hong Kong - UAE BIT, also signed in 2019. Recent empirical analysis of settlements in investment arbitrations suggests there is more scope for amicable dispute resolution than some expect. Accordingly, in its future treaty (re)negotiations, India might also consider proposing provisions for mandatory mediation before arbitration.
Recommended Citation
Claxton, James; Nottage, Luke; and Ubilava, Ana
(2021)
"Mandatory Investor-State Conciliation Before Arbitration in Asia-Pacific Treaties: New Developments and Implications for India and Australia,"
Indian Journal of International Economic Law: Vol. 13, Article 9.
Available at:
https://repository.nls.ac.in/ijiel/vol13/iss1/9