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
