"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.

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.