Indian Government launches international research project on the impact of Bilateral Investment Treaties on investment flows from/to the country

India entered into its first bilateral investment treaty (BIT), with the United Kingdom, in 1994, as part of a strategy to attract inbound foreign direct investment (FDI).  Having begun to open its economy in the 1990s, India today is a major investment destination.  The Modi government has been keen to attract further investment, including with its “Make in India” campaign.

However, in recent years, a variety of events has led to India being the recipient of a large number of claims by investors under BITs. By 2016, India was one of the most frequently-named respondent states in BIT proceedings.  Following its first loss in a BIT arbitration in 2011 (the White Industries case, discussed here.  Note: India has recently won its first BIT case, discussed here), the stance of the Indian government towards BIT protections for inbound investors appeared to harden, leading it to send notices in 2016 to terminate BITs with 58 countries, including 22 EU countries (discussed here).  This followed its publication of a new 2015 Model BIT (discussed here).  For the remaining BITs not cancelled in 2016/2017 (seemingly because they were within their initial terms), India has circulated a proposed joint interpretative statement to the counterparties to these BITs seeking to align the ongoing treaties with its 2015 Model BIT.

There are no known instances of states agreeing to a new treaty based on India’s 2015 Model BIT, although it was reported last year that the Indian government had approved a joint interpretative note to apply to India’s BIT with Bangladesh

In the meantime, the Indian government, through the Centre for Trade and Investment Law (CTIL), a think-tank established in 2016 by the Ministry of Commerce and Industry, in collaboration with Dr. Rishab Gupta, Partner, of Shardul Amarchand Mangaldas & Co., has instituted a survey on experiences and attitudes towards BIT protections, and their importance to FDI flows into and out of India.  This outbound element is an important aspect of the analysis as Indian businesses are increasingly involved in FDI outside India, and may wish to take advantage of BIT protections over their investments.

A link to the survey can be found below, which we understand will remain active until the end of October 2018. The survey contains 10-12 questions which vary depending on the initial answers regarding the location and type of entity responding.

http://survey.sogosurvey.com/r/r1ocQs

The outcome of the questionnaire together with the rest of the study results are scheduled to be publicly released by the end of 2018. All stakeholders with experience of or insight into the BIT regime applicable to India are encouraged to participate.

For further information, please contact Nicholas Peacock, Head of the India Disputes Practice, or your usual Herbert Smith Freehills contact.

Nicholas Peacock
Nicholas Peacock
Partner
+44 20 7466 2803

Overcoming reluctance to arbitrate in the TMT sector

Drawing on two surveys on the use of arbitration in technology, media and telecoms disputes, Susan Field, a senior associate and solicitor advocate at Herbert Smith Freehills in London, considers whether parties in the TMT sector are moving away from their traditional reluctance to use international arbitration.

The technology media and telecoms (TMT) sector has grown by leaps and bounds in recent years. With rapid, sometimes cross-border, development and the increasing spend and dependency on technology, comes the unavoidable pain of disputes as deals go wrong, partnerships turn sour, or things do not go to plan. There are already a large number of TMT-related disputes globally, many involving significant sums. According to a survey of the TMT sector conducted by Queen Mary University of London in 2016 (International Dispute Resolution Survey – Pre-empting and Resolving Technology, Media and Telecoms Disputes), 23% of participants had experienced more than 20 TMT disputes over the past five years. More than a third said that they had been involved in at least one dispute valued in excess of US$100 million. The QMU survey also identified the types of TMT disputes most commonly encountered: these included IP, licensing, regulatory, supply chain and consumer disputes, though there was of course variation in the type of disputes encountered in the individual technology, media and telecoms industries.

More recently, in 2017, the Silicon Valley Arbitration and Mediation Centre (SVMAC) conducted its own survey identifying among other things the top perceived benefits of arbitration among technology companies.

While the surveys suggest there is a growing market for dispute resolution in the TMT sector, there remains a perception that parties are reluctant to use it. This article looks at whether there is any basis for this and how the arbitration community should respond.

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