India: BITS And Pieces - India's Bilateral Investment Treaty Revisited

1. INTRODUCTION

Back in March 2015 the Government of India released a draft model bilateral investment treaty (the "Draft BIT") for public consultation and comments, which we analyzed in our earlier article in May 2015.1

Since then, the Law Commission of India submitted a report analyzing the Draft BIT and suggested changes (the "Report"). Taking into account the Report and comments from other stakeholders, the Government of India amended the Draft BIT and published its finalized bilateral investment treaty in January 2016 (the "Model BIT").

The Model BIT is intended to replace existing bilateral investment treaties and this article highlights to what extent the Report and other comments from stakeholders have been incorporated into the Model BIT.

2. BILATERAL INVESTMENT TREATIES

Bilateral investment treaties (otherwise known and bilateral investment promotion and protection agreements in India) are agreements between states that essentially give foreign investors rights against the host state in the event that a change in law or other measures essentially devalue or expropriate the investment made. As of December 2013, India had signed 83 bilateral investment treaties, of which, 72 were in force.2

3. RECENT BIT JURISPRUDENCE

There has been no shortage of cases filed against the Government of India.

In November 2011, an arbitration tribunal in the case of White Industries v Republic of India held India liable for failing to ensure its treaty obligation to provide "effective means of asserting claims and enforcing rights" pursuant to Article 4(2) of the India-Australia BIT read in conjunction with Article 4(5) of the India-Kuwait BIT.

The tribunal held that the delay in enforcing an award in favor of White Industries against Coal India was a denial of the effective means to enforce its rights relating to an investment and awarded White Industries the sum of just over USD 4 million (with interest).

In 2012, Vodafone B.V. invoked the India-Netherlands Bilateral Investment Treaty claiming that India's Direct Tax Bill, which sought to retrospectively tax its 2007 acquisition of Hutch Telecom, was a failure to accord 'fair and equitable' treatment, notwithstanding India's Supreme Court ruling in favor of Vodafone over its tax dispute with the Government of India.

Norwegian firm Telenor and Russian firm Sistema have also filed notices under respective bilateral treaties following the cancellation of 122 telecommunications licenses for 2G Spectrum by India's Supreme Court, which effectively expropriated their investments.

In March 2012, the Children's Investment Fund ("CIF") filed a notice of dispute, invoking the India-UK and the India-Cyprus Bilateral Investment Treaties. CIF had invested in Coal India and alleged that its sale of assets below market value on the directive of the Government of India was essentially a devaluation of its shares.

More recently, in March 2015, Cairn Energy filed a notice under the India-UK Bilateral Investment Treaty in relation to a USD 1.6 billion tax claim brought in context of a group re-structuring that Cairn submit triggered no transfer of value or taxable event in India.3

4. THE DRAFT BIT AND THE REPORT

Faced with a rising spike of claims against it, the Government of India rolled out the Draft BIT that raised eyebrows for several reasons. The Report, in particular, pointed out several deficiencies with the draft.

Essentially, the Report concluded that the Draft BIT needed to be more investor friendly. Having restrictive clauses in the BIT would deter foreign investors from investing in India and also adversely affect Indian investors abroad.

The Report suggested a change to the definition of "Investment" concluding that "real and substantial business" and the list of elements that constitute such business was unnecessary and could be used to narrowly interpret the definition.

Even the provision defining "control" was viewed as interfering at the very root of corporate freedom and potential investors could be uncomfortable with such a clause. The Law Commission took the view that a general reference to ownership and control in good faith would suffice.

The Law Commission also noted that "owned" which was defined to be owning more than 50 per cent of the capital or funds or contribution into the company, conflict with existing capital requirements under India's foreign investment policy, where foreign investment of less than 50 per cent would automatically be excluded from the protection of the treaty.

Crucially, it suggested that government procurement be included in the treaty protection because foreign investors often enter a country through the government procurement process, for example, through infrastructure projects. Excluding government procurement from the treaty protection would lead to the exclusion of many activities contributing substantially to the Host State's development.

The Report also concluded that there was room for improvement to provide more adequate protection to investors, the absence of which could possibly disincentivise foreign investors from investing in India. However, on the controversial issue of taxation, the Report suggested that it was not necessary to include taxation within the purview of the treaty, as the power to tax is an integral part of the state's prerogative, which is well recognized in international law.

The Draft BIT asserted the supremacy of the Host State in determining whether or not any conduct on its part is a subject matter of taxation and therefore excluded it from the scope of the treaty. The power of a state to tax anyway exists independent of a treaty, unless the tax itself is arbitrary and blatantly discriminatory.

Further, the Draft BIT imposed specific transparency obligations on Investors. The Report suggested that the Host State should be equally required to make information publicly available, including information relating to laws and regulations, administrative procedures, rulings, judicial decisions, and international agreements, as well as draft or proposed rules.

The Report also suggested that the Draft BIT should also incorporate a 'denial of benefit' clause where investors could be denied protection benefits in case of corruption and involvement in illegal activities. However, this could lead to minor non-compliance having the disproportionate effect of denying the Investor the benefit of the treaty.

Following public consultation and stakeholder feedback, many changes have been made to the Draft BIT, giving the Model BIT a more investor friendly approach.

4.1 Preamble

The pro-investment approach of the Model BIT begins with the preamble itself. This is in contrast to the earlier Draft BIT whose preamble included only "promotion" as an objective. The Model BIT now incorporates "promotion" and "protection" of the investment as its objective which will be viewed favorably by investors, as protection of the investment is as important as the promotion of it.

4.2 Investment

The key change made to the Draft BIT is the definition of Investment itself. The narrow definition in the earlier Draft BIT has given way to broader based definition, which is a welcome change.

The Model BIT defines "Investment" to mean an enterprise, constituted, organized and operated in good faith by an investor in accordance with the law of the Party who's territory the investment is made, taken together with the assets of the enterprise, has the characteristics of an investment, such as the commitment of capital or other resources, certain duration, the expectation of gain or profit, the assumption of risk and a significance for the development of the Party in whose territory is made.

It should be noted that the deletion of the earlier requirement in the Draft BIT of having a long term commitment of capital in the Host State, engaging substantial numbers of employees reduces the scope for subjective interpretation and thereby makes the definition more pro-investment.

The definition also drops the requirement for the enterprise to have "real and substantial business operations" in the territory of the Host State, something that raised objections on the basis of its subjective interpretation.

In a further concession to Investors, the definition now explicitly includes: (a) shares, stocks and other forms of equity instruments of the enterprise or in another enterprise; (b), debt instrument or securities of another enterprise; (c) a loan to another enterprise wherein the enterprise is an affiliate of the investor or where the original maturity of the loan is at least 3 years; (d) licenses, permits, authorizations or similar rights (e) rights conferred by contracts of a long term nature such as for cultivating, extracting and exploiting natural resources; (f) copyrights, know-how and intellectual property rights such as patents, trademarks, industrial designs and trade names; (g) movable or immovable property related rights; and (h) any other interest involving substantial economic activity deriving significant financial value.

This is a welcome change and in particular, (d) and (e) should give Investors investing in large infrastructure or natural resource projects a degree of confidence against any termination of a concession agreement or license by the Host State pursuant to a change in law, or otherwise, through alleged impropriety.

It should be noted in this context that historically, a substantial number of licenses granted to foreign joint ventures to operate mobile telecommunications services or to Indian companies to extract coal were cancelled on the grounds of alleged corruption in their procurement. With the inclusion of (d) and (e) into the definition, such allegations would at the very least, be justiciable, and therefore reduce the risk of arbitrary cancellation or termination.

However, the Model BIT still specifies what an Investment excludes and debt securities issued by a government or a government-owned or controlled enterprise, or loans to a government or government-owned or controlled enterprise still remain outside of the definition of Investment.

In our view, this remains problematic since any foreign lending to public sector undertakings or subscription for securities, would remain outside of the scope of the treaty. Foreign portfolio investment continues to remain outside of the definition of Investment.

Finally, it should be noted that the exclusion of goodwill and similar intangible rights may be a cause for concern for investors as such rights are normally incidental to the rights included in the definition such as intellectual property rights.

4.3 Scope

Article 2 of the Model BIT maps out its scope and general provisions. It states that the treaty applies to Investments in existence on the date of entry into force of the treaty and nothing in the treaty shall apply to either party in respect of any measure of law that existed before the date of entry into force of the treaty.

The treaty does not apply to any measure taken by local government (which is defined to be local councils and should not be confused with State governments), any law or measure relating to taxation, pre-investment activity relating to the establishment of the Investment (which could be substantial in major infrastructure or energy and natural resource projects), government procurement or services supplied by a governmental authority other than on a commercial basis.

In our view, excluding government procurement will likely impact the confidence of investment into the defense sector (a central plank of the Make in India campaign)4 and cancellation of procurement will likely mean that foreign defense companies will be unable to resort to the treaty to counter claim against any cancellation or termination by the Government of India. It should be noted in this context that in 2014, the Government of India cancelled a contract for the supply of 12 Augusta Westland helicopters with Finmeccanica, on allegations of corruption.

The exclusion of taxation matters is controversial. Following the invocation by Vodafone and Cairn Energy of their home state's respective bilateral investment treaties with India, it is clear that the intention is to make taxation measures exempt from the scope of the treaty.

The Model BIT clearly states that where the Host State asserts (in its own discretion) that the subject matter of the dispute relates to taxation, any decision of the Host State shall be non-justiciable and excluded from the scope of the treaty.5 This effectively means that any retrospective taxation ruling taken in accordance with Indian law would be binding on the Investor. If it effectively expropriates the value of the Investment, the Investor will be unable to seek compensation from the Government of India through international arbitration.

This basically limits taxation related matters to the scope and ambit of Double Taxation Avoidance Agreements, and their future scope and ambit will become increasingly important.

Clearly, a disproportionate tax dispute, determined solely by the Host State, could amount to an effective expropriation of the Investment and its continued omission from the Model BIT will continue to cause Investor concern.

4.4 Standard of treatment

It is customary under bilateral investment treaties for the host state to ensure that investors receive fair and equitable treatment and are provided full protection and security on terms no less favorable than those offered to other investors and entities of the home state.6

Article 3.1 of the Model BIT protects Investments from measures which constitute a violation of customary international law through: (i) the denial of justice in judicial proceedings; (ii) the fundamental breach of due process; (iii) targeted discrimination on manifestly unjust grounds (such as gender, race or religious belief); or (iv) manifestly abusive treatment, such as coercion, duress and harassment.

The corresponding provision in the Draft BIT referred to measures that constituted un-remedied violations of due process or manifestly abusive and outrageous treatment, involving continuous and unjustified coercion.

Arguably, the revised provision is more beneficial to Investors since it sets out more grounds for challenging a measure, though it remains an open question as to whether those four grounds are the only possible causes of a violation of customary international law.

It should also be noted that Article 3.2 of the Model BIT now provides for "full protection and security" to investors with respect to their investments. However, the definition limits the scope of such security to "physical security of investors and to the investments made by the investors of the other party and not to any other obligation whatsoever."

This narrows existing jurisprudence on the interpretation of the standard provision. Tribunals in various investor state disputes have generally opined that full protection and security implies a broad scope and that a safe and secure environment should be rightfully extended to investors.

By defining and limiting the scope of this provision to "physical security", in our view, such protection is limited (excluding legal security and damage to intangible assets and goodwill) and falls short of full protection and security provided under customary International Law.

4.5 National Treatment

It is customary for bilateral investment treaties to guarantee foreign investors the same treatment that the host state affords its own entities. The Model BIT provides that each Party would not apply measures to Investments that are less favorable in like circumstances to domestic investments with respect to the management, conduct, operation, sale or other disposition of investments in its territory.7

Under the Draft BIT, this provision was limited to those measures taken by the Union Government, effectively excluding measures taken by State Governments. The Model BIT however, now includes measures taken by State Governments (though not local councils) within the purview of this provision.

It should be noted that in this context, State Governments within India (being a quasi-federal state) have the power to make decisions independent of the Union Government that could impact the Investor and the Investment. Why, however, the decisions taken by local councils should be excluded from the treaty is not clear.

Limiting the scope of this provision to decisions by the Union Government would have otherwise posed a challenge with respect to investments made at state level and the decisions of State Governments. Therefore including actions of State Governments within the scope of the treaty should provide greater confidence to Investors.

4.6 Expropriation

Article 5 of the Model BIT deals with expropriation of the Investment and the consequences thereof. Of note, it is recognized that expropriation may be direct or indirect and further, that indirect expropriation may occur if a measure, or a series of measures, has an effect equivalent to direct expropriation, substantially or permanently depriving the investor of fundamental attributes of its investment (without formal transfer or seizure).

However, it should be noted that the sole fact that a measure or series of measures have an adverse effect on the value of the investment does not in itself establish that an indirect expropriation has occurred.8

Normally, following an expropriation, the customary international legal remedy is to provide adequate, prompt and effective compensation. This has been modified in the Model BIT and the Host State need only provide adequate compensation that is:

"at least equivalent to the fair market value of the expropriated investment on the day before the expropriation takes place".9

The provision goes on to benchmark the valuation criteria to include asset value, (including declared tax value of tangible property) and other appropriate criteria to determine fair market value.

Of concern however, is the exclusion of non-discriminatory regulatory measures or awards by judicial bodies that are designed and applied to protect legitimate public interest or public purpose objectives such as public health, safety and environment.10 Jurisprudence by international tribunals on what constitutes a legitimate public interest or public purpose is therefore of crucial importance to investors.

In summary, expropriation, per se, is not necessarily catastrophic, as long as the Investor is adequately, promptly and effectively compensated for its loss. While the Model BIT provides a benchmark against fair market value, it is an improvement on the terms of the Draft BIT that set out a number of mitigating factors that could operate to reduce the value of the compensation.

Interestingly, under Article 7 of the Model BIT (which was not included in the Draft BIT), the Host State shall accord to Investors and Investments, non-discriminatory treatment with respect to measures, including "restitution, indemnification, compensation or other settlement, it adopts or maintains relating to losses suffered by investments in its territory owing to war or other armed conflict, civil strife, state of national emergency or a natural disaster".

4.7 Subrogation

Article 8 of the Model BIT provides for the subrogation of rights to a State or its agency if they have paid the Investor under a guarantee or a contract of insurance in respect of the Investment.

This provision was absent from the Draft BIT and foresees the Home State compensating the Investor against the acts of the Host State and then claiming against the Host State.

Impliedly, this allows Investors to shift the burden of the claim to its Home State. Further, this may be viewed in a positive light by not only foreign investors but also Indian investors making investments abroad, in the event that the Government of India underwrites the Indian investor.

4.8 Transparency

Article 10 of the Model BIT is a new clause that did not have a corresponding provision in the Draft BIT. The provision has been added to make the general application of law, regulations, procedures and administrative rulings in respect of any matter covered by the Treaty to be easily accessible and available to interested parties. It seeks to reduce the ambiguity involved in the application of such law and also ensures the clarity of such laws and policies for the benefit of investors.

4.9 Corporate Social Responsibility

It is interesting to note that the Model BIT now includes corporate social responsibility activities, requiring investors to voluntarily incorporate internationally recognized standards of corporate social responsibility in their internal policies and practices.11

This has been included with a view to encourage foreign investors to support various social causes in the Host State. However, it is questionable whether it is necessary since corresponding obligations are already prescribed under the Companies Act and inevitably, raises the question of conflicting standards of obligations.

4.10 Exhaustion of local remedies

Under the Model BIT, before an Investor can initiate arbitration proceedings against the Host State, it must first exhaust all local remedies. The Investor may initiate a claim before a competent domestic court of law, within one year from the date on which the Investor first acquires knowledge of the measure in question and knowledge that the investment has incurred a resulting loss.

However, the exhaustion of local remedies shall not apply to the Investor if it can demonstrate that the domestic legal remedies available are not capable of reasonably providing any relief in respect of the same measure or similar factual matters for which a breach of treaty is claimed by the investor.12

Furthermore, it should be noted that if no domestic resolution to the claim is achieved within 5 years from the date on which the Investor first acquired knowledge of the measure in question, then the Investor must further issue a notice to the Host State to follow a further 6 month period of attempting to find a solution before invoking the treaty provisions.13 In the event that a solution cannot be found, the Investor has just 6 months to invoke the treaty provisions.14

On the one hand, this is a welcome inclusion and gives the judicial machinery of the Host State a time bound obligation to conclude the matter, failing which, the Investor is free to invoke the treaty. However, Investors may feel that the obligation to pursue local remedies for 5 years is too long, and it should be considerably shorter.

Finally, it should be noted that the parties may establish an institutional mechanism to hear appeals of decisions by the tribunal constituted by the Model BIT, which is a departure from what was in the Draft BIT.15

4.11 Investor Obligations

It is interesting to note that the obligations placed upon the Investor in the Model BIT are significantly watered down from the Draft BIT. Previously, the draft contained provisions relating to corruption, disclosure and general compliance with Host State Law. Given that these provisions apply anyway to the Investor's entity incorporated in India, it raised the question as to whether it was necessary to repeat those obligations in the treaty.

Furthermore, it raised the question of a potential conflict of standards. A higher standard of disclosure and obligations placed on the Investor in the Draft Treaty than what was actually required under the law of the Host State would inevitably create confusion as to which standards should be followed. The deletion of these obligations from the Model BIT are therefore a welcome change, eliminating the risk of contradiction between treaty obligations and obligations under domestic law.

4.12 Provisions excluded

The Model BIT does not contain a Most Favored Nation clause, which ensures that the relevant parties treat each other in a manner at least as favorable as they treat third parties. Other common clauses that have been excluded include an Umbrella Clause (which guarantees the observance of obligations assumed by the host state against the investor) and a Fair and Equitable Treatment Standard, which may offer redress where the facts do not support a claim for expropriation.

It is pertinent to note here that the Most Favored Nation clause was excluded in the Draft BIT. The use of this provision, to essentially borrow beneficial substantive and procedural provisions from other BIT's has been a matter of concern.

The Law Commission in its report stated that the absence of a Most Favored Nation provision would expose foreign investors to the risk of discriminatory treatment by the Host State in the application of its domestic measures. Therefore, the Law Commission suggested that in order to achieve a balance, India could consider having a Most Favored Nation provision whose scope is restricted to the application of domestic measures, which would ensure non-discriminatory treatment to foreign investors, yet prevent foreign investors from treaty shopping. However, the Indian Government has not provided any detailed explanation for the absence of a Most Favored Nation provision in either the Draft BIT or the Model BIT.

5. CONCLUSIONS

As we stated in our previous article on this subject, the spike in dispute notifications issued under existing bilateral investment treaties has undoubtedly led the Government of India to reassess the terms of its existing treaties. Inevitably, an increase in foreign investment is bound to see a corresponding increase in disputes and the Government of India finds itself having to finely balance the legitimate interests of the state, with a predictable and stable environment for investment in general.

Does the Model BIT accept all the recommendations of the Law Commission Report? The Draft BIT received criticism for being too pro-state and for being heavily biased towards the Host State. However, in contrast, the Model BIT attempts to strike a better balance between the interests of the Host State and the interests of Investors. Concessions have been made to expand the definition of Investment, but the exclusion of government procurement from the ambit of the Model BIT may impact the Make in India campaign and the development of big-ticket infrastructure projects.

Practically, renegotiating India's existing bilateral investment treaties will be a time consuming and painstaking task. It also remains to be seen to what extent that the Government of India intends to overhaul existing free trade agreements with Singapore, South Korea and Japan (which contain investor protections and dispute resolution mechanisms) with terms similar to the Model BIT.

The ultimate question is whether India will be able to effectively implement the provisions of its Model BIT in its negotiations (and renegotiations) with other States. However, the Government of India seems confident that the economic balance of power lies in its favor.

Footnotes

[1]http://www.mondaq.com/india/x/405104/Government+Contracts+Procurement+PPP/BITS+And+Pieces+Reassembling+Indias+
Bilateral+Investment+Treaty

[2] http://finmin.nic.in/bipa/bipa_index.asp?pageid=1

[3]http://www.cairnenergy.com/assets/files/cms/indian_tax_dispute_investor_conference_call_transcript.pdf

[4] http://www.makeinindia.com/sector/defence-manufacturing/

[5] See Article 2.4(ii)

[6] Based upon the Calvo Doctrine under Public International Law

[7] See Article 4.1

[8] See Article 5.3 (b) (i)

[9] See Article 5.1

[10] See Article 5.5

[11] See Article 12

[12] See Article 15.1

[13] See Article 15.4

[14] See Article 15.5

[15] See Article 29

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.

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