India and Brazil conclude negotiations of Bilateral Investment Treaty

As previously noted in April 2015, India amended its model bilateral investment treaty (the Indian Model BIT) and has reportedly been deploying it in recent months to seek to re-negotiate bilateral investment treaties (BITs) with over 47 countries (see previous post of July 2016). One of these negotiations was with Brazil, a country historically known for not having any BITs in force, despite signing several in the 1990s. A specialised news source (Investment Arbitration Reporter) has now reported the conclusion of negotiations between India and Brazil culminating in a near-final treaty between the two nations.1]

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Arbitration in India: the new Mumbai Centre for International Arbitration

This post looks at the opening of the brand new Mumbai Centre for International Arbitration (MCIA). A first-of-its-kind arbitral institution in India, established in a joint initiative between the Government of Maharashtra and the domestic and international business and legal communities. The MCIA will be formally launched at a Conference at the Trident Hotel, Mumbai on Saturday, 8 October 2016.

 

Nick Peacock, Head of the India Disputes practice at Herbert Smith Freehills, and who is a member of the founding Council of the MCIA, speaks with the MCIA's Co-Chairman, Vyapak Desai (also Head of International Litigation & Dispute Resolution at the Indian law firm, Nishith Desai Associates) to discuss the aims and offering of India's newest arbitral institution.

For more information, please contact Nicholas Peacock, partner, or your usual Herbert Smith Freehills contact.

Nicholas Peacock
Nicholas Peacock
Partner
+44 20 7466 2803

Recent Developments in India-Related International Arbitration

Herbert Smith Freehills has issued the latest edition of its Indian international arbitration e-bulletin.

In this issue, we consider Indian court decisions, including the rejection of forum non conveniens arguments by the Delhi High Court allowing restaurant chain McDonalds to pursue an arbitration in London and various decisions in which the Indian courts show restraint in relation to interfering with offshore arbitrations. In other news, we consider India’s position in seeking to re-negotiate its Bilateral Investment Treaties with 47 countries. Further, we discuss the recently launched Mumbai Centre for International Arbitration to which HSF partner Nick Peacock has been appointed to the Council.

For further information, please contact Nicholas Peacock, Head of India Arbitration Practice, Alastair Henderson, Managing Partner-SE Asia, Donny Surtani, Senior Associate, Kritika Venugopal, Associate or your usual Herbert Smith Freehills contact.

Nicholas Peacock
Nicholas Peacock
Partner
+44 20 7466 2803
Alastair Henderson
Alastair Henderson
Partner
+65 6 868 8000
Donny Surtani
Donny Surtani
Senior Associate
+44 20 7466 2216
Kritika Venugopal
Kritika Venugopal
Associate
+656 868 8017

India seeks to re-negotiate Bilateral Investment Treaties with over 47 countries

As we previously reported in April 2015 and January 2016, the Government of India ("GOI") published a draft Model Text for the Indian Bilateral Investment Treaty ("Model BIT") to serve as a framework for the renegotiation of India's bilateral investment treaties ("BITs") worldwide.  This appeared to be a response to the BIT claims that India has been faced with over the last few years, including the decision against India in the White Industries award of 2012, in which a tribunal hearing a claim under the India-Australia BIT held against the GOI by importing provisions found in the India-Kuwait BIT (reported here).

The GOI is now reported to have taken a further step, by making contact with counterparts in 47 countries to re-open negotiations of their BITs with India on the basis of the Model BIT. 

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LCIA India to end operations

The London Court of International Arbitration (LCIA) has decided to end its physical presence in India, with the closure of its independent subsidiary, LCIA India.

The decision to end physical presence in India was based on market feedback that Indian parties were content to continue to use LCIA rules, and also owing to insufficient adopters of LCIA India clauses to justify a presence on the ground. The LCIA will revert to its traditional model of offering institutional arbitration services to Indian parties and international parties doing business with Indian counter-parties through LCIA London. It plans to develop legal, language and cultural expertise in its case-work teams to better serve the needs of the Indian market.

Arbitration continues to grow India, and recent judicial pronouncements are generally viewed as being pro-arbitration. For a round-up of recent developments, please see our recent e-bulletin here.

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Head of India Arbitration Practice, Nick Peacock, comments on India’s Final Text for its Model BIT for CNBC TV18’s “The Firm”

As reported in our recent India E Bulletin here, India has unveiled the final version of its Model Text for the Indian Bilateral Investment Treaty (Model BIT).  The Model BIT serves as a template for negotiation by India of bilateral investment treaties and free trade agreements.  India is a significant global trading and investment partner to many countries.  It is currently negotiating a number of free trade and economic co-operation agreements  (including with the EU, Canada and Australia).

Head of the India Arbitration Practice, Nick Peacock was invited to comment on the Final Model BIT for CNBC TV18’s The Firm, India’s only television programme covering corporate law, M&A, financial regulation, tax and audit matters.

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Recent Developments in India-related international arbitration

Herbert Smith Freehills has issued the latest edition of its Indian international arbitration e-bulletin.

In this issue, we consider Indian court decisions on the arbitrability of fraud and the enforceability and execution of a foreign award against a “sick” Indian company.  We also provide updates on changes to India’s legislative framework for dispute resolution and on recent news about BIT and other treaty claims against India.

For further information, please contact Nicholas Peacock, Head of India Arbitration Practice, Alastair Henderson, Managing Partner-SE Asia, Donny Surtani, Senior Associate, or your usual Herbert Smith Freehills contact.

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Arbitrability of fraud in India

The decision of the Indian Supreme Court in Swiss Timing Limited v Organising Committee, 2010 Olympic Games, Delhi[1] ("Swiss Timing") last year seemingly settled the legal position on whether claims involving allegations of fraud are arbitrable in India. The Supreme Court in Swiss Timing overruled the previous leading Supreme Court authority, N Radhakrishnan v Maestro Engineering[2] ("Radhakrishnan"), to hold that fraud allegations are capable of being adjudicated by arbitral tribunals. However, a number of recent Indian High Court decisions have taken apparently conflicting approaches to the issue and have raised questions on the authority of Swiss Timing to effectively overrule Radhakrishnan. The vexed question of arbitrability of fraud has thus been brought back to the forefront of Indian arbitration law.

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Amendments to the Indian Arbitration Act now effective

The Indian Government has taken steps to implement long awaited arbitration reforms by promulgating an ordinance, the Arbitration and Conciliation (Amendment) Ordinance, 2015 (the “Ordinance“), amending the Arbitration and Conciliation Act 1996 (the “Act“). These amendments have been on the cards for almost a year and the Government was earlier contemplating following the usual route of obtaining legislative approval for amending the Act. However, in light of the Modi Government’s agenda to improve the ease of doing business in India, it is not surprising that the Government has opted for introducing an ordinance. Although the Ordinance is effective immediately, it will need Parliamentary approval in the upcoming session.  The Ordinance largely follows the proposals set forth in a report of the Law Commission of India published last year.

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Webinar: Investing in India – An update on the landscape and challenges for inbound investment

Monday 7 September 2015, 12.30 – 1.30pm BST

With the Modi Government well into its second year, we review the economic, political and legal environment for foreign direct investment (FDI) into India. With some still calling for ‘big bang’ reforms to transform the investment landscape, others are hailing perceived incremental changes of policy and practice by a government apparatus still trying to shape itself to majority rule after decades of coalition and compromise.

Meanwhile, the larger Indian economy has continued to grow at more than 7% a year, making India the fastest-growing big economy in the world.

In this webinar, we are joined by Dr Gareth Price, Senior Research Fellow in the Asia Programme at the independent policy institute Chatham House based in London. Dr Price will consider the progress of economic reform in India and what it means for ongoing and future FDI.

He will be joined by Alan Montgomery, Head of Mergers & Acquisitions in the India Practice at Herbert Smith Freehills who will reflect on his ‘on the ground’ experiences of handling investment into India. Also speaking will be Nicholas Peacock, Head of the India International Arbitration Practice at Herbert Smith Freehills who will provide an update on enforcement and rule of law issues for inbound investors, including the challenges of negotiating the Indian court system, international arbitration, and the use of investment treaty protection.

The session will be moderated by Chris Parsons, the Chairman of Herbert Smith Freehills’ India Practice.

The webinar is part of our series of “Soundbite” webinars, which are designed to update clients and contacts on the latest developments without having to leave their desks. The webinars can be accessed “live”, with a facility to send in questions by e-mail, or can be downloaded as podcasts after the event. If you would like to register for a webinar, or to obtain a link to the archived version, please contact Prudence Heidemans. The webinars, both live and archived, also qualify for one CPD point.

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