INTRODUCTION
Transparency of ISDS has become a highly contentious subject in recent years, and it is a crucial component of the current ISDS reform. A growing number of IIAs include TRAs. TRAs in IIAs are further subdivided into four categories. The first category is concerned with the publication of various types of arbitration papers, such as the disputants' pleadings and the arbitral awards (PUB). The second subtype is concerned with the public access or opening of the arbitration hearings, letting the public to view the arbitration processes in an appropriate manner (HER). The third subtype addresses the contentious topic of non-disputable third-party participation in arbitration procedures (TPB), generally in the form of written arguments submitted as amicus curiae. A reference to the UNCITRAL Transparency Rules (UTR) is the fourth subtype. Because these Rules were only approved in 2014, they have not been regularly alluded to in IIAs, and states have differing perspectives on them.
Many trade and investment treaties rely heavily on NES. The state is largely responsible for ensuring national security. Almost all NES are exceptive in character, with the goal of exempting nations from taking regulatory measures to preserve critical national security or international peace and security that are otherwise inconsistent with their IIA commitments (EXP).
RBPs appear to be a somewhat "novel" sort of SDP. The international community has recognised that investor behaviour can raise serious concerns about long-term development, and RBPs have increasingly crept into IIAs to help solve this predicament, albeit they are still uncommon in IIAs in general. Existing RBPs are frequently included in recent IIAs of wealthy countries. RBPs are further subdivided into three categories. A reference to an external code of behaviour (REF), such as the OECD Guideline for Multinational Enterprises, is the first subtype. Such a mention does not always impose a legal duty on the investors. The second subtype requires an IIA to impose certain responsibilities on contracting nations in order to encourage or oversee investors to engage in responsible behaviour (ROS). The third subtype is where an IIA explicitly imposes certain duties on investors to require them to engage in responsible investing activities (ROI).
The nature of the SDP-imposed obligations
As previously stated, the amount, types, and subtypes of SDPs present in an IIA determine its level of sustainable development orientation. In general, the number of SDPs contained in an IIA indicates if the IIA contains any (or sufficient) treaty rules that can be utilised to resolve concerns about sustainable development. The many sorts of SDPs show what kind(s) of sustainable development issues this IIA is likely to address. The subtypes of SDPs demonstrate the practical effectiveness with which this IIA can answer issues about sustainable development. SDP responsibilities might be declarative, obligatory, or exceptive in nature, regardless of the many types and subtypes of SDPs.
Declaratory SDPs are essentially a statement or a simple assurance that the contracting nations will promote or adopt steps for sustainable development in accordance with their domestic law or other international law principles. A declaration of attaining sustainable development in the preamble of an IIA is an example of a declaratory SDP. Such SDPs do not impose responsibilities on nations; however, they may represent the IIA's goal. In this regard, such SDPs are ineffective in practise. DEC (of GENs and ATCs), CON (of ENVs and LHRs), and REF (of LHRs and RBPs) are examples of SDP subtypes.
Obligatory SDPs place requirements on contracting governments to take positive actions or refrain from engaging in a sustainable development-related behaviour. The vast majority of SDPs are mandatory. Such SDPs often require an IIA's contracting states to implement different sustainable development initiatives. NDG (of ENVs and LHRs), AOS (of ATCs and RBPs), PUB, COM, ENG, TPB, HER, and UTR (of TRLs and TRAs) are examples of such SDPs. Recently, a growing number of IIAs have begun to include measures that put direct responsibilities on foreign investors, particularly in the area of corporate social responsibility. AOI (of ATCs) and ROI (of RBPs) are two examples of SDP subtypes.
Exceptive SDPs, in general, aim to preserve contracting states' regulatory rights for adopting measures for sustainable development by exempting states from their responsibilities for taking regulatory measures that are otherwise inconsistent with their IIA duties. In theory, exceptive SDPs have the greatest practical effectiveness. EXP (of ENVs, LHRs, and NES) is an example of such an SDP.
INDIAN INVESTMENT TREATIES Qua ENVIRONMENT PROTECTION & SDGs
The international economic policy is presently focused on achieving sustainable development.1 Since it was originally conceptualised in the 1987 in the Brundtland Report2 and formally adopted in the 1992 Rio Declaration on Environment and Development, the idea of "sustainable development" has been continually changing.3 Initially aimed at bringing economic development and environmental protection closer together,4 sustainable development now encompasses three dimensions - economic growth, social inclusion, and environmental protection - with the goal of eradicating poverty in all its forms.5 The UN 2030 Agenda for Sustainable Development and its 17 SDGs6 are the most recent step towards achieving sustainable development.7 The United Nations Agenda 2030 outlines a wide variety of goals and targets for achieving sustainable development. States must seek comprehensive environmental policies and procedures to guarantee that economic development does not degrade the environment in order to enhance environmental protection.8 Similarly, states must implement comprehensive health, educational, and other social programmes to promote social well-being for all citizens.9 The UN Agenda 2030 allows nation states broad leeway in implementing the SDGs. Implementation methods include the development of required infrastructure such as energy projects, water and sewerage systems, transportation networks and public transit systems, medical facilities, or schools.10 Furthermore, the sustainable use of natural resources and the creation of jobs help to achieve the UNSDGs.11 Furthermore, nations must establish a national and international legal and policy framework conducive to attaining the SDGs,12 including legislative and administrative steps to guarantee that economic initiatives conform with the host country's environmental and social policies. In a framework programme to be completed by 2022, India has developed the first set of priorities for achieving the SDGs.13 The UN 2030 Agenda calls on all essential parties to work together to achieve sustainable development,14 emphasising the need of foreign investment.15 In addition, India heavily relies on foreign investment to accomplish the SDGs.16 However, only sustainable foreign investment, defined as foreign investment that is not only economically possible but also adheres to the host country's sustainability policies,17 may make a beneficial impact. As a result, the UN 2030 Agenda recommends that nation states create a legislative framework that encourages long-term foreign investment.18 While determining emission standards, establishing protected areas,38 regulating water prices,19 or raising minimum wages20 may be required to realise the SDGs, such sustainability measures must - if affecting foreign investors - comply with India's IIA obligations to avoid India's responsibility to foreign investors.21
Footnotes
1. UN 2030 Agenda, ¶¶ 2, 9.
2. World Commission on Environment and Development, 'Our Common Future' (1987), UNGA Doc A/42/427, para 27; for the further development of the notion "sustainable development" see Markus Gehring and Andrew Newcombe, 'An Introduction to Sustainable Development in World Investment Law' in Marie-Claire Cordonier Segger, Markus W. Gehring and Andrew Newcombe (eds), Sustainable Development in World Investment Law (Wolters Kluwer 2011) 3-11, 6; Marie-Claire Cordonier Segger and Ashfaq Khalfan, 'Origins of the Concept of Sustainable Development' in Marie-Claire Cordonier Segger and Ashfaq Khalfan (eds), Sustainable Development Law: Principles, Practices, & Prospects (Oxford University Press 2004) 15-43, 15 (Condonier Segger and Khalfan).
3. UN General Assembly, Rio Declaration on Environment and Development (1992) A/ CONF.151/26 (vol I).
4. UN General Assembly, Rio Declaration on Environment and Development (1992) A/ CONF.151/26 (vol I).
5. UN 2030 Agenda (2015), preamble, 3rd recital; UN 2030 Agenda, paras 2 and 9; see also UN General Assembly, Rio+20 Declaration 'The Future We Want' (2012) A/RES/66/288, paras 3 and 4; for a discussion see Cordonier Segger and Khalfan, 15.
6. UN 2030 Agenda (2015), ¶¶ 54 ff; for details see UN, 17 Goals to Transform Our World, https://www.un.org/sustainabledevelopment/, accessed 1 May 2023.
7. UN 2030 Agenda (2015), ¶ 16.
8. UN 2030 Agenda (2015), SDGs 13, 14, 15.
9. UN 2030 Agenda, SDGs, 2, 3, 4, 6.
10. UN 2030 Agenda, SDGs, 2, 3, 4, 6, 7.
11. UN 2030 Agenda, ¶¶ 9, 33 and SDGs, 8, 9, 12.2, 14.
12. UN 2030 Agenda, ¶ 63, SDG 1(b).
13. Government of India and United Nations, 'Sustainable Development Framework 2018- 2022' (United Nations, 2018), https://digitallibrary.in.one.un.org/, accessed 1 May 2023.
14. UN Agenda 2030, ¶¶ 39-46.
15. See UN 2030 Agenda, ¶¶ 28, 41 and 67 and SDGs 1(b), 2(a), 7(a), 10(b), 17.3 and 17.5.
16. Government of India and United Nations, 'Sustainable Development Framework 2018- 2022' (United Nations, 2018), https://digitallibrary.in.one.un.org/, accessed 1 May 2023, 57; see also Voluntary National Review of India's Sustainable Development Goals 2017, https://sustainabledevelopment.un.org/memberstates/india, accessed 1 May 2023.
17. Karl Sauvant and Howard Mann, 'Towards an Indicative List of FDI Sustainability Characteristics' (International Center for Trade and Development, World Economic Forum 2017), 2
18. UN 2030 Agenda, SDGs 1.b., 17.3 and 17.5.
19. This question was at issue in eg Compañia del Desarrollo de Santa Elena SA v Republic of Costa Rica (Award, 2000) ICSID Case No ARB/96/1 (Sta Elena) or in Cortec Mining Kenya Ltd, Cortec (Pty) Ltd and Stirling Capital Ltd v Republic of Kenya, (Award, 2018) ICSID Case No ARB/15/29 (Cortec).
20. Eg Biwater.
21. Veolia Propreté v Arab Republic of Egypt (Award, 2018) ICSID Case No ARB/12/15) (Veolia).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.