Lecture Series on International Investment Law: Lectures 1 to 15

Recently, we had commenced a lecture series introducing the subject of International Investment Law. We have completed the first fifteen lectures of the lecture series. The lecture series is aimed at covering the fundamentals of International Investment Law and making the subject more accessible through short lectures (approximately 8 to 10 minutes). The lecture series is divided into various chapters addressing specific topics and each chapter contains several lectures.

In this post, we will provide links to the first fifteen lectures with a brief overview of each video.

[Note: The first few videos have feeble audio. Readers may use headphones. For subsequent videos, laptop's inbuilt speaker will do.]

Chapter 1: Chapter 1 : 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

In this lecture, we will see how International Investment Law evolved during the inter-war period, between 1914 and 1945,. We will also discuss its evolution 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 2: 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 3: Fair and Equitable Treatment

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.

History of International Investment Law: Lecture Series on Introduction to International Law

In the past three months, we have been uploading a lecture every fortnight on the broad purpose of providing an introductory overview to international investment law. The purpose of these lectures is to make the subject more accessible. The lectures uploaded so far can be accessed from here. The first five lectures provide a brief historical overview of the subject. The transcript of the first lecture on the origins of international investment law before 1870 are dealt with in this post.

Lecture 1: Origins of International Investment Law before 1870

Lecture Link: https://youtu.be/_x57zCsHOxU

Hello and welcome to the video lectures on the Introduction to International Investment Law.

In this lecture series, we would be covering about 10-12 broad topics on the subject, and these would include important and controversial topics such as expropriation, Fair and Equal Treatment and Most Favoured Nation principles, as well as the latest developments, both in international investment law and international investor-state arbitration.

This lecture series can be taken up by students and others who are interested in getting an introductory overview of the subject.

Moving on to the first chapter of this series, “Nature & Evolution of International Investment Law”, we can see that 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, certain developments in international politics have had influence in the evolution of IIL.

For example, in 1778, USA and France concluded the first commercial treaty, known as the Treaty of Alliance; in fact there were many treaties and they are collectively called Treaties of Alliance. The treaty importantly provided for commercial relationship between both countries.

Then followed the various Friendship, Commerce and Navigation Treaties entered into between countries, especially between US and others. Take the example of the United States–Paraguay Treaty of Friendship, Commerce and Navigation of 1859.

These treaties protected individual and other rights such as:

• Protection of individuals and their property,
• freedom of movement and worship,
• assuring rights to trade and to engage in commercial enterprise,
• granting national treatment and most-favoured-nation status,
• allowing for access to ports, and
• granting navigation rights through territorial waters

One would note that even the recent most treaties guarantee these rights.

There were also Unequal or capitulation treaties. These conferred one-sided rights on the dominant conquering colonizer. These were the products of actual or threatened use of force by the dominant powers, especially those from the West. Although these treaties were couched in neutral language, they were actually meant to protect the rights, property and investment of the colonizer.

Examples of such treaties include treaties between Western powers and China between 1840s to 1860s.

In fact, it has been argued that the imposition of such unequal treaties was a key legal strategy in the European colonization. Key features of these treaties included:

• Travel prerogatives of foreign traders,
• the securing of extensive trading and investment rights,
• non-discriminatory commercial access to the host state,
• grant of concessions to foreign companies,
• the protection of Christian missionaries,
• leasing or ceding of territory to foreign states, and
• governance powers, including establishment of parallel systems of governance.

Thus, the origins of the IIL themselves have been tainted by colonialism and the superstructure of IIL was built with colonialism and power dynamics between nations as the base.

Another important aspect is the evolution of the law on diplomatic protection to alien property in the 19th and the early 20th centuries.

A new branch of international law began to emerge in the 19th century known as diplomatic protection of aliens. This concerned establishment of an internationally acceptable minimum standard for the treatment of foreign persons and foreign companies, protection of person and property, etc. Violation of these standards meant that the host state was responsible and this meant military or other intervention by the state to which that alien belonged.

For more information on this, readers can refer to the first chapter of the book by Kate Miles titled “The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital” and published by the CUP in the year 2013.

Symposium Alert: XIV Annual NLSIR-Samvād Partners Symposium on Strategising a Healthcare Framework for India: Headways, Dilemmas, and the Way Forward

 [Announcement of NLSIR Symposium as received from NLSIR is posted below]

About NLSIR

The National Law School of India Review (NLSIR) is the flagship journal of the National Law School of India University, Bangalore (NLSIU). For over 30 years now, NLSIR has constantly sought to encourage legal scholarship on issues of relevance to legal practitioners. In 2009, we became the first Indian student-run journal to be cited by the Supreme Court of India in its decision in Action Committee, Unaided Private Schools v. Director of Education. Notably, we have also been cited recently in the Supreme Court’s landmark judgment, Justice K.S. Puttaswamy v. Union of India, which established the Right to Privacy in India.

About the Symposium

In furtherance of our mandate to encourage legal scholarship and push the boundaries of law and policy, we are organising the XIV Annual NLSIR-Samvād Partners Symposium on Strategising a Healthcare Framework for India: Headways, Dilemmas, and the Way Forward. The Symposium will be held virtually on May 9, 2021 and is completely free to attend. The Symposium is divided into three sessions, the outlines of which are available in the attached Concept Note. Each panel will be followed by a Q&A session, where attendees will have the opportunity to interact with the panellists.

 This year, Justice Ravindra Bhat, Supreme Court of India, will be delivering the Inaugural Address and Dr. Soumya Swaminathan, Chief Scientist, WHO, will be delivering the Introductory Address to the Symposium.

Sessions

 

Session I is titled 'Assessing India's Clinical Trial Rules: Developments and Some Festering Concerns for the Healthcare System'. In this session, we seek to engage in a discussion on India's clinical trial regime and its particular complications with regard to scientific and traditional medicines. 

 

Keynote Speaker: Mr. Murali Neelakantan - Principal Lawyer, Amicus and former Global General Counsel, Cipla Limited

The panellists for Session I are:

1.     Mr. Milind Antani - Lead, Pharma, Life Science, and Healthcare Practice, Nishith Desai Associates

2.     Prof. Padmavati Manchikanti - Professor, Rajiv Gandhi School of Intellectual Property, IIT Kharagpur

3.     Mr. Dinesh Thakur - Public Health Activist and Expert in Pharmaceutical, Biomedical Product Development, and Drug Regulation

4.     Ms. Nivedita Saksena - Digital Health Policy Fellow, India Digital Health Network

Session II, titled 'The Ecosystem of Healthcare: Patent and Trade', will consider two competing interests - incentives for research and development on the one hand, and accessibility of vital drugs on the other hand - and their implications amidst the Covid-19 crisis. 

 Keynote Speaker: Justice Prabha Sridevan - Retired Judge, Madras High Court and Chairperson of the Intellectual Property Appellate Tribunal from 2011 to 2013

The panellists for Session II are:

1.     Prof. Jayashree Watal - Adjunct Professor of Law, Georgetown University and Counsellor, Intellectual Property Division of the WTO from 2001 to 2019

2.     Mr. Rohan K George - Partner, Samvād: Partners

3.     Prof. Padmashree Gehl-Sampath - Fellow and Senior Advisor of the Global Access in Action Program at the Berkman Klein Center, Harvard University

4.     Mr. Prashant Reddy - Lawyer and Expert on Intellectual Property Law and Drug Regulations

5.     Ms. Neha Srivastava - Partner Designate, Remfry & Sagar

Session III is titled 'The Law and Model Framework to Provide Universal Right to Health and Healthcare Infrastructure'. In this session, we will explore the existing public healthcare system in India, its varied actors and stakeholders, and endeavour to conceptualise a universal right to healthcare in India. 

 Keynote Speaker: Mr. Anand Grover - Senior Advocate, Supreme Court of India

The panellists for this session are:

1.     Prof. S.V. Joga Rao - Visiting Professor, NLSIU and Healthcare Consultant at Legalexcel

2.     Ms. Arkaja Singh - Fellow, Centre for Policy Research

3.     Mr. Akshat Agarwal - Senior Resident Fellow, Vidhi Centre for Legal Policy

4.     Mr. Varun Jhaveri - Officer on Special Duty at the National Health Authority, Government of India

Registration

Please use the following link to register for the Symposium: https://docs.google.com/forms/d/e/1FAIpQLSdsouhY1bifv355PKzNzNGkqmKyoTiVAmAs-379bcJC7yrEEg/viewform. Since slots are limited, we urge you to register as soon as possible. We hope to see you at the Symposium and would love to have you engage with the discussions on this pertinent theme.

Please feel free to contact the undersigned in case you have any queries. You can also mail us at nlsir@nls.ac.in.

Regards,

Viraj Ananth (+91 81979 98480) and Kashish Makkar (+91 96369 41027),

Editors-in-Chief, National Law School of India Review '20-'21

Time as Essence in Construction Contracts: Need for a Comprehensive Relook

The issue of time as essence in construction contracts is controversial and is frequently litigated. The law on the subject is largely unsatisfactory. In a paper titled "The Law on Time as Essence in Construction Contracts: A Critique" published in Volume 8 Issue 1 of the RGNUL Financial and mercantile Law Review (here), the law on the subject is critically evaluated. The paper argues that the precedent on the issue, Hind Construction Contractors v. State of Maharashtra, AIR 1979 SC 720 ("Hind Construction"), was wrongly decided and requires reconsideration. It also argues that:

• Hind Construction is no more relevant to the current times and provides incentives to inefficient contractors leading to delay in project completion; 
• Contracting parties do not appear to have circumvented the adverse effect produced by Hind Construction through the use of appropriate language in their contracts despite various decisions following the said decision; and 
• One of such reasons for the phenomena appears to be a lack of direction by courts as to what contracting language could constitute future courts to construe a contractual condition providing that time is of the essence as such.

The paper concludes by arguing that concludes by highlighting possible contractual clauses and contract management strategies that could further party intent that time is of the essence in construction contracts notwithstanding Hind Construction and later decisions following it.

Abstract of the Paper is provided below:

"The concept of time as essence in construction contracts is a controversial topic. Even though parties routinely provide in their agreements that time is of the essence, these clauses inevitably figure in construction disputes. Arbitral tribunals and courts have mostly decided such disputes holding those clauses to be of no legal effect, mainly by relying on the decision of a three-judge bench of the Hon’ble Supreme Court in Hind Construction Contractors v. State of Maharashtra. This paper argues that Hind Construction was wrongly decided, that it is not good law and that it requires reconsideration given the changing times. The paper further notes that parties do not appear to have circumvented the adverse effect of Hind Construction. Usually, in such situations, there is a change in contracting behaviour by the use of appropriate contracting language. Perhaps, this is due to the lack of direction by courts as to what appropriate language could be used in contracts to make time as the essence of the contract. This paper concludes by suggesting possible methods by which courts and arbitral tribunals could validly enforce time-as-essence clauses."

Critique of the paper is welcome as comments to this post. Readers can also write to lawbadri@gmail.com

* Image from here.