"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Friday, January 14, 2022

Lecture Series on Introduction to International Investment Law: (Lectures 1 to 50: Complete Lectures)


On 20 March 2021, almost ten months back, we began a lecture series introducing the topic of international investment law. With the 50th and the last lecture uploaded on 14 January 2022, we complete this introductory lecture series on international investment law.

The objective behind this lecture series was to provide a set of simple lectures on the subject, given the lack of openly accessible materials on the subject. Most law schools in India do not teach this important subject. With these lectures freely accessible, no law student in India, for that matter, no student anywhere in the world, will have problem understanding the basics of international investment law. All one needs is a decent internet connection and a smart phone or a laptop. The links provided in the description constitute important materials regarding the topics discussed there. Most of the materials referred to in these lectures are also openly accessible.

This post provides an overview of the complete set of lectures and draws from content provided in two previous posts (here and here) of this blog. The Playlist of the lectures can be accessed from here. Link to each lecture is provided below:

Chapter I : History & Nature of International Investment Law

Lecture 1: Origins of International Investment Law before 1870 (click on the lecture name)

Historically, International Investment Law has evolved in three distinct phases in the modern history: Phase I is the period from 1870 to 1914; Phase II is the inter-war period, between 1918 to1945, and phase III is the post-war period, beginning from 1945. But, even before the first phase (1870), certain developments in international politics have had influence in the evolution of IIL. This lecture deals with those developments.

Lecture 2: More About Origins & A Bit about Phase I

In this lecture we delve into the evolution of IIL in the first phase that is, between 1870 and 1914. But before we go further, those watching may refer to two interesting papers on the origins before 1870, one by Kate Miles, the author of the book which we referred to in last lecture, and the other by Anne-Charlotte Martineau.

Lecture 3: Inter-War Period & Evolution Thereafter

Evolution of International Investment Law during the inter-war period, between 1914 and 1945, and during the post-II world war phase till 1964.

Lecture 4: The Era of Dichotomy

In the last lecture, we saw that there are four phases through which IIL evolved after the World War II. We saw that the first phase, known as the era of infancy spanned up to 1964. In this lecture, we look at the Era of Dichotomy from 1965 to 1987.

Lecture 5: The Eras of Proliferation and Reorientation

In this lecture, we discuss how International Investment Law evolved through the eras of proliferation (1990-2007) and reorientation (2008- till date).

Chapter II: Investment Treaty/ Contract

Lecture 6: Nature of Foreign Investment

In the first five lectures we introduced the subject and provided a historical overview of how IIL evolved. In this lecture, we will have a look at the nature of foreign investment.

Lecture 7: What is Investment?

In this lecture, we will answer the fundamental question: what is investment?

Lecture 8: What is Investment? Part II

In the last video, we discussed the concept of “Investment” and analysed two different types of definition of investment, taking the India-UAE BIT and the Brazil- India BIT as examples. We also saw the general practices regarding the definition of investment. In this video, we’ll discuss the ICSID practice and the Salini test on the definition of investment.

Lecture 9: Who is an Investor?

In this video we will be dealing with another important threshold question: Who is an investor?

Lecture 10: Natural Persons as Investors

In the last lecture, we discussed certain general aspects relating to the question: “who is an investor?”. In this lecture, we will look at how the question is answered from the perspective of natural persons.

Lecture 11: Legal Persons as Investors

In this, video, we will discuss various tests to determine the nationality of juridical persons.

Lecture 12: Who is an Investor? Treaty Shopping

In this lecture we will deal with an important aspect relating to the question "who is an investor?": Treaty shopping.

Lecture 13: Shareholders as Investors

The general principles regarding investor and investment apply equally to shareholders. This lecture deals with the law relating to whether shareholders could initiate investment treaty claims.

Lecture 14: Elements of an Investment Treaty

In this lecture, we will see the core elements of an investment treaty. We will also use the India-UAE BIT, 2013 and the Brazil India BIT, 2020 to provide an idea of how these provisions look in practice.

Chapter III: Substantive Standards I

Lecture 15: Fair & Equitable Treatment: An Introduction

In this lecture, we will discuss one of the most widely used substantial protections under international investment law, that is, Fair and Equitable Treatment, or FET.

Lecture 16: Fair & Equitable Treatment: Preliminary Aspects

This lecture deals with certain preliminary aspects of the FET standard, including its brief history and its nature and function.

Lecture 17: More on Fair and Equitable Standards

This lecture addresses issues such as whether FET standard is a part of customary international law relating to minimum standard of treatment and the evolution of FET standard

Lecture 18: India and the FET Standard

This lecture looks at India’s skirmishes with the FET standard in the White Industries Award and the Cairn BIT Award. Note that the purpose of this lecture series is to introduce readers to the subject and therefore, this lecture does not critically examines the Award insofar as the FET standard is concerned but would only provide a descriptive comment.

Lecture 19: Introduction to Full Protection and Security Standard

This lecture introduces the full protection and security standard. It talks about how the standard finds its place in certain Indian BITs and about the first case in BIT history, which pertained to this standard.

Lecture 20: More on Full Protection and Security Standard

Lecture 20 discusses the scope of the FPSS and provides an overview of its features.

Lecture 21: Full Protection & Security in LDA v India Arbitration

This lecture concerns the application of the Full Protection and Security standard in the Louis Dreyfus Armateurs SAS (France) v. India arbitration, which India successfully defended.

Lecture 22: Non-Impairment Standard: An Introduction

Lecture 22 discusses Non-impairment standard, which is another substantive protection in investment treaties. The lecture discusses the non-impairment.

Lecture 23: More on the Non-Impairment Standard

Lecture 23 discusses the measures that can constitute a violation of the non-impairment standard. The cases of EDF (Services) Limited v. Romania, ELSI Elettronica Sicula SpA, Siemens v. Argentina, LG&E Energy Corp v. Argentina have also been discussed.

Lecture 24: The Umbrella Clause

This lecture discusses the meaning, evolution, and variants of the Umbrella clause.

Lecture 25: More on the Umbrella Clause

This lecture discusses the case of SGS v Pakistan insofar as it relates to the Umbrella clause.

Lecture 26: Approaches to the Umbrella Clause

Umbrella clause has not received a uniform interpretation. Different tribunals, including the one in SGS v. Pakistan, have construed the clause differently.

Lecture 27: Nissan v India and the Umbrella Clause

This lecture discusses the recent case of Nissan v. India which relates to the Umbrella clause.

Chapter IV: Substantive Standards of Protection II

Lecture 28: Most Favoured Nation Standard

The Most Favoured Nation or the MFN standard.

Lecture 29: More on the MFN Standard

Exceptions to MFN standard and the temporal scope of the standard.

Lecture 30: MFN & Procedural Rules

Extension of MFN to procedural rules. The MFN standard has been construed to extend even to procedural provisions such as dispute resolution although MFN in itself is a substantive standard.

Lecture 31: National Treatment

Basics of the national treatment standard and the relevance of WTO jurisprudence relating to national treatment in construing the contours of the national treatment obligations in international investment agreements.

Lecture 32: More on National Treatment

Factors to determine violation of the national treatment standard.

Lecture 33: Some Features of National Treatment & the LDA Award

Basic features of the national treatment standard and the Louis Dreyfus Armateurs SAS (France) v. India insofar as it relates to the national treatment standard.

Lecture 34: Expropriation

Concept of expropriation.

Lecture 35: Direct and Indirect Expropriation

The India UAE and the Brazil India BITs with reference to direct and indirect expropriation.

Lecture 36: Ingredients of Indirect Expropriation

The ingredients of indirect expropriation.

Lecture 37: Indirect Expropriation: Some More Examples

The ingredients of indirect expropriation with examples.

Lecture 38: Compensation for Expropriation

Compensation for expropriation.

Lecture 39: More on Compensation for Expropriation

Determination of Fair Market Value as compensation for expropriation.

Lecture 40: Some More on Compensation for Expropriation

Various aspects relating to compensation for unlawful expropriation.

Lecture 41: Use of DCF Methodology

Key ideas presented in the webinar organised by FTI Consulting and Mumbai Centre for International Arbitration on the topic of compensation in international investment law on 2 December 2021 concerning the topic of compensation for expropriation.

Lecture 44: Moral Damages in International Investment Law

Concept of moral damages in international investment law.

Chapter V: Dispute Resolution in International Investment Law

Lecture 45: Dispute Resolution in BITs

General aspects relating to dispute resolution in international investment treaties.

Lecture 46: Recent Trends in Dispute Resolution: Brazil India BIT 2020

Recent trends in dispute resolution provisions with special reference to Brazil India BIT, 2020.

Lecture 47: Local Exhaustion

Exhaustion of Local Remedies (ELR)

Lecture 48: Local Exhaustion II

More on Exhaustion of Local Remedies (ELR)

Lecture 49:  A Bit More on ELR

Overview of some case law on the principle of Exhaustion of Local Remedies or ELR and the relevant provisions in India’s Model BIT on ELR.

Chapter VI: Recent Developments & Concluding Observations

Lecture 42: Comment on the 10th Report of the Committee of External Affairs (2020-2021)- Part I

Descriptive comment on the Parliament of India’s Standing Committee Report of September 2021 titled “Tenth Report of the Committee on External Affairs (2020-21) on the subject ‘India and Bilateral Investment Treaties’.”

Lecture 43: Comment on the 10th Report of the Committee of External Affairs (2020-2021)- Part II

Second Part of the descriptive comment on the first two chapters of the Departmentally Related Standing Committee Report of September 2021 titled “Tenth Report of the Committee on External Affairs (2020-21) on the subject ‘India and Bilateral Investment Treaties’.

Lecture 50: Recent Developments & Concluding Observations

Recent developments in international investment law and concluding observations


Friday, December 31, 2021

A Bit More on Reciprocal Arrangements under Section 44 of the 1996 Act

In the last decade (yes you read it right!) we wrote two posts (here and here) on the notifications relating to reciprocal arrangements under the Foreign  Awards (Recognition & Enforcement) Act, 1961 and the Arbitration and Conciliation Act, 1996. Thanks to inputs from readers, we were able to get hold of a few more notifications. In this post, we provide a consolidated overview of the notifications and the law on the subject. It would be great if readers could contribute to the list of notifications either by posting the notification's link on the comment box or by emailing it to lawbadri@gmail.com.

  1. Source: Justice Bachawat's Law of Arbitration & Conciliation (5th ed. 2010), P.2264 ff. List of countries notified under the Foreign  Awards (Recognition & Enforcement) Act, 1961 (p. 2296): The countries are Austria, Botswana, Bulgaria, Central African Republic, Chile, Cuba, Czechslovak Socialist Republic, Denmark, Ecuador, Arab Republic of Egypt, Finland, France, German Democratic Republic, Federal Republic of Germany, Ghana, Greece, Hungary, Italy, Japan, Kuwait, Republic of Korea, Malagasy Republic, Mexico, Morocco, Nigeria, The Netherlands, Norway, Philippines, Poland, Romania, San Marino, Spain, Sweden, Switzerland, Syrian Arab Republic, Thailand, Trinidad and Tobago, Tunisia, USSR, UK, United Republic of Tanzania, and USA.
  2. Source: Reply to RTI Application (here): Singapore, Malaysia, Canada, Australia, China, Hong Kong SAR and Macao SAR, Mauritius
Some Related Issues:

Whether Notifications issued under the Foreign  Awards (Recognition & Enforcement) Act, 1961 could be used for Awards after 1996 Act was brought into force?

Yes, guess so. Please see Section 85 which states: 

"85. Repeal and savings.—(1) The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed.
(2) Notwithstanding such repeal,—
(a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force;
(b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act." (emphasis added).

Whether precedents enforcing of foreign awards can be cited in the absence of tracing the relevant notifications?

Will not hurt making such an attempt. In the last post in 2018, we had noted:

"We spoke to some of the practitioners in the field. They say that none of the respondents had raised such an objection. Even if they raise such an objection, it would be possible to cite previous judgements where awards for such territories have been enforced. But the question is whether such an objection has been raised in the first place in those decisions?"

However, it is possible for a counter-argument (where applicable) that the objection regarding reciprocity was not taken before the court which enforcement a foreign award.

In any case, to address the information gap, it would be useful for courts deciding on enforcement of foreign arbitral awards to specify the seat of arbitration so that such precedents could be cited, in the absence of copy of notifications. We find that in several decisions enforcement foreign awards, courts have not been mentioning the seat/ place of arbitration. It would be useful if they did so. 

Some judgments mention the seat and courts in those cases have enforced foreign awards from seats not mentioned in the notifications issued under the 1996 Act (here). Some such judgments rendered in the last three years are as follows:

Switzerland: Pasl Wind Solutions Private Limited vs. GE Power Conversion India Private Limited (20.04.2021 - SC) : MANU/SC/0295/2021(strictly, not a decision enforcing a foreign award)

USA: International Nut Alliance LLC vs. Johns Cashew Company (09.12.2021 - KERHC) : MANU/KE/3139/2021 


Egypt: Angelique International Limited vs. Public Electricity Corporation and Ors. (23.06.2020 - DELHC) : MANU/DE/1290/2020  

UK: Glencore International AG vs. Hindustan Zinc Limited (08.06.2020 - DELHC) : MANU/DE/1238/2020 (London Court of International Arbitration-LCIA- Award enforced); Peniel Cashew Company and Ors. vs. Ahcom Sarl (30.10.2018 - KERHC) : MANU/KE/2997/2018 (CENTA award); C and C Maritime Pte. Ltd. vs. Advance Surfactants India Ltd. (24.01.2019 - DELHC) : MANU/DE/0280/2019.

Saturday, August 14, 2021

Lecture Series on International Investment Law: Lectures 16 to 30

Just before the Second Wave of Covid19 in India, we started off a lecture series introducing international investment law. As was stated in a previous post in this blog, the objective of the lecture series was to cover the fundamentals of International Investment Law and making the subject more accessible through short lectures (approximately 8 to 10 minutes). The lecture series is not restricted to any particular jurisdiction, although many of the examples provided relate to India. Overview of the first fifteen lectures is contained in this post. This post covers lectures 16 to 30.

Chapter 3: Substantive Standards of Protection I


In this lecture, we discuss one of the most widely used substantial protections under international investment law, that is, Fair and Equitable Treatment, or FET. We also deal with the FET clause in the India-UAE BIT, 2013 and the Brazil India BIT, 2020


This lecture deals with certain preliminary aspects of the FET standard, including its brief history and its nature and function.


This lecture addresses issues such as whether FET standard is a part of customary international law relating to minimum standard of treatment and the evolution of FET standard


This lecture looks at India’s skirmishes with the FET standard in the White Industries Award and the Cairn BIT Award. Note that the purpose of this lecture series is to introduce readers to the subject and therefore, this lecture does not critically examines the Award insofar as the FET standard is concerned but would only provide a descriptive comment.


This lecture introduces the full protection and security standard. It talks about how the standard finds its place in certain Indian BITs and about the first case in BIT history, which pertained to this standard.


Lecture 20 discusses the scope of the FPSS and provides an overview of its features.


This lecture concerns the application of the Full Protection and Security standard in the Louis Dreyfus Armateurs SAS (France) v. India arbitration, which India successfully defended.


Lecture 22 discusses Non-impairment standard, which is another substantive protection in investment treaties. The lecture discusses the non-impairment.


Lecture 23 discusses the measures that can constitute a violation of the non-impairment standard. The cases of EDF (Services) Limited v. Romania, ELSI Elettronica Sicula SpA, Siemens v. Argentina, LG&E Energy Corp v. Argentina have also been discussed.


This lecture discusses the meaning, evolution, and variants of the Umbrella clause.


This lecture discusses the case of SGS v Pakistan insofar as it relates to the Umbrella clause.


Umbrella clause has not received a uniform interpretation. Different tribunals, including the one in SGS v. Pakistan, have construed the clause differently.

This lecture discusses the recent case of Nissan v. India which relates to the Umbrella clause.

Chapter IV: Substantive Standards of Protection II

In this lecture, we discuss the Most Favoured Nation or the MFN standard.


In this lecture, we cover the issues of exceptions to MFN standard and the temporal scope of the standard.


In this lecture, we deal with an interesting topic under MFN-extension of MFN to procedural rules. The MFN standard has been construed to extend even to procedural provisions such as dispute resolution although MFN in itself is a substantive standard.

Sunday, June 27, 2021

Lecture 2: History of International Investment Law from 1870 to 1914 (Script & Video)


Those watching this lecture series would recollect that in the last lecture, we discussed about the origins of the IIL wherein we saw that it evolved out of colonialism. We also discussed that many concepts that evolved out of colonialism and imperialism are used even in the latest of Investment treaties.

In this lecture we delve into the evolution of IIL in the first phase that is, between 1870 and 1914. But before we go further, those watching may refer to two interesting papers on the origins before 1870, one by Kate Miles, the author of the book which we referred to in last lecture, and the other by Anne-Charlotte Martineau.

The two papers are:

  • Kate Miles, International Investment Law: Origins, Imperialism and Conceptualizing the Environment, 21 Colo. J. Int'l Envtl. L. & Pol'y 1 (2010); and
  • Anne-Charlotte Martineau, A Forgotten Chapter in the History of International Commercial Arbitration: The Slave Trade's Dispute Settlement System, Leiden Journal of International Law (2018), page 1 of 23.

The first lecture was mainly based on Chapter I of Kate Miles book, whose content is similar to the first paper.

The second paper above is equally interesting: it traces the origins of the present system of IIL and Dispute resolution system in IIL to slave trade in the 16th to 18th centuries. It states that the institution of judges-conservators established to resolve disputes out of slave trade was the precursor to arbitral tribunals established for resolving disputes through international arbitration.

Interesting conclusions are drawn in the paper: one, contrary to the widely held belief that international law came to rescue slaves by advocating its abolition, international law created, supported and perpetrated the slave trade regime for at least three centuries.

The author speaks of ‘private’ dimensions of formal and informal imperialism. This important and interesting. Colonialism has its roots in corporations effecting economic and political control over the third world. East India Company in India an apt example. 

The author is therefore correct in saying that : “There is nothing neutral, normal or apolitical in investment law and adjudication.”

So, the evolution of IIL is not about good faith, treaties and precedents, but about blood, sweat and tears.

Now, coming to the evolution of IIL from 1870, this phase saw two prominent developments.

One was the entrenchment of the expropriation doctrine. Standards for compensation due to expropriation were developed. For example, the Convention of Friendship, Commerce and Extradition Between the United States and Switzerland, 1850 stated in Article 2(3):

In case of [] expropriation for purposes of public utility, the citizens of one of the two countries residing or established in the other shall be placed upon an equal footing with the citizens of the country in which they reside, with respect to indemnities for damages they may have sustained.”

Thus, the standard for compensation on account of expropriation was national treatment.

In this phase, expropriation was considered lawful if certain conditions were met. These conditions were:

a) it was carried out for a public purpose;

b) it was not arbitrary or discriminatory; and

c) prompt, adequate, and effective compensation was paid.

It would be interesting to note that the phrase “prompt, adequate, and effective” was coined in 1940 by United States Secretary of State Cordell Hull in diplomatic correspondence with Mexico. This became the ‘Hull Formula’. Interestingly, Hull was awarded the Nobel Peace Prize in 1945 for playing a pivotal role in establishing the United Nations.

Another development in this period was the entrenchment of the international minimum standards and the national treatment doctrines and the tension between these concepts.

While US and other European powers subscribed to the international minimum standard rule, the countries in the third world, especially the Latin American nations advocated the national treatment rule. Their argument was that the international minimum standards rule impinged on their sovereignty and foreign persons could not be afforded a treatment that was beyond what a state offered to its citizens.

National treatment was also the second limb of the famous Calvo Doctrine. This doctrine arose from the ideas of Carlos Calvo, a jurist from Argentina, first published in 1868.

The first limb of the Calvo doctrine was that state sovereignty precluded states from interfering into the affairs of another state, either through diplomatic channels or by force.

Although the Calvo doctrine came to be looked upon with disfavour by the Western nations, it has had a considerable influence in the evolution of IIL.

This is possibly a precursor to the local exhaustion rule in international investment law.

More on the first phase in the next lecture.