"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, January 29, 2022

Slides of the Lecture Series on Introduction to International Law

In the previous post, we had listed out the lectures in the introductory lecture series on international investment law. We have been getting comments from many who have been watching those videos to post the content in a text document. Owing to constraints of time, we are not able to do so now. But, those interested can access the slides that were used for recording the videos. 

Links to these slides are given below (click on "link to the Slides" given against each Chapter.):

Chapter 0: Overview of Lectures: Lecture 0 (link to the Slides)

Chapter I: History & Nature of International Investment Law: Lectures 1 to 5 (link to the Slides)
Chapter II: Investment Treaty/ Contract: Lectures 6 to 14 (link to the Slides)

Chapter III: Substantive Standards I: Lectures 15 to 27 (link to the Slides)

Chapter IV: Substantive Standards of Protection II: Lectures 28 to 44 (link to the Slides)

Chapter V: Dispute Resolution in International Investment Law: Lectures 45 to 49 (link to the Slides)

Chapter VI: Recent Developments & Concluding Observations: Lectures 42-43 & 50 (link to the Slides)

Happy Reading!

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