1 of 8

�Chapter VI �Recent Developments in International Investment Law

Introduction to International Investment Law

​

2 of 8

Recent Developments in IIAs

  • Termination of existing BITs and entry of fresh BITs
  • Reduction in number of BITs

​

3 of 8

Recent Trends in IIAs

  • References to the protection of health and safety, labour rights, environment or sustainable development in the treaty preamble
  • General exceptions, e.g. for the protection of human, animal or plant life or health; or the conservation of exhaustible natural resources
  • Refined definition of investment (e.g. reference to characteristics of investment; exclusion of portfolio investment, sovereign debt obligations or claims to money arising solely from commercial contracts)
  • Explicit recognition in the treaty text that parties should not relax health, safety or environmental standards to attract investment
  • Circumscribed FET (in accordance with customary international law, equated to the minimum standard of treatment of aliens under customary international law or clarified with a list of State obligations), or FET omitted

4 of 8

Recent Trends in IIAs(2)

  • Promotion of corporate and social responsibility standards by incorporating a separate provision into the IIA or as a general reference in the treaty preamble
  • Clarification of what does and does not constitute an indirect expropriation, or indirect expropriation omitted
  • Limiting access to ISDS (e.g. limiting treaty provisions subject to ISDS, excluding policy areas from ISDS, limiting time period to submit claims, omitting the ISDS mechanism)
  • Detailed exceptions from the free-transfer-of-funds obligation, including for balance-of-payments difficulties and/or enforcement of national laws
  • Specific proactive provisions on investment promotion and/or facilitation (e.g. facilitating the entry and sojourn of personnel, furthering transparency of relevant laws and regulations, enhancing exchange of information on investment opportunities)
  • Omission of the so-called “umbrella” clause

5 of 8

Other Developments

  • Revision by ICSID of procedural rules
  • Modernisation of Energy Charter Treaty
  • More emphasis on human rights and environment
  • Urbaser SA v. Argentina, Award dt. 08.12.2016, in ICSID Case No. ARB/07/26
  • Burlington v Ecuador, Decision on Ecuador’s Counterclaims dt. 7 February 2017

​

6 of 8

Recent Developments in Indian Context

  • Awards and Enforcement in Vodafone and Cairn matters
  • The Taxation Laws (Amendment) Act, 2021
    • No future demand would be based on the basis of the said clarificatory amendment for indirect transfer of Indian assets if the transaction was undertaken before 28th May, 2012.
    • Past demand based on the retrospective clarification would be nullified on fulfilment of specified conditions
  • Devas v Antrix issue and enforcement of Devas award.
  • 10th Report of the Standing Committee on External Affairs: “India & BITs”

​

7 of 8

Contact & References

8 of 8

References (2)