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Journal of International Trade Law and Policy: Investor-State dispute settlement (ISDS) cases and India: affronting regulatory autonomy or indicting capricious state behaviour?
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Abstract
Purpose – The dominant narrative in the investor-State dispute settlement (ISDS) system is that it enables
powerful corporations to encroach upon the regulatory power of developing countries aimed at pursuing
compelling public interest objectives. The example of Phillip Morris, the tobacco giant, suing Uruguay’s
public health measures is cited as the most significant example to prove this thesis. The other side of the story
that States abuse their public power to undermine the protected rights of foreign investors does not get much
attention.
Design/methodology/approach – This paper reviews all the ISDS cases that India has lost to ascertain
the reason why these claims were brought against India in the first place. The approach of the paper is to
study these ISDS cases to find out whether these cases arose due to abuse of the State’s public power or
affronted India’s regulatory autonomy.
Findings – Against this global context, this paper studies the ISDS claims brought against India, one of the
highest respondent-State in ISDS, to show that they arose due to India’s capricious behaviour. Analysis of
these cases reveals that India acted in bad faith and abused its public power by either amending laws
retroactively or by scrapping licences without following due process or going back on specific and written
assurances that induced investors to invest. In none of these cases, the foreign investors challenged India’s
regulatory measures aimed at advancing the genuine public interest. The absence of a “Phillip Morris
moment” in India’s ISDS story is a stark reminder that one should give due weight to the equally compelling
narrative that ISDS claims are also a result of abuse of public power by States.
Originality/value – The originality value of this paper arises from the fact that this is the first
comprehensive study of ISDS cases brought against India and provides full documentation within the larger
global context of rising ISDS cases. The paper contributes to the debate on international investment law by
showing that in the case of India most of the ISDS cases brought were due to India abusing its public power
and was not an affront on India’s regulatory autonomy.
Prabhash Ranjan - Personal Name
NONE
Text
ENGLISH
EMERALD INSIGHT
2022
ENGLAND
JURNAL ILMU HUKUM
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APA Citation
Prabhash Ranjan. (2022).Journal of International Trade Law and Policy:
Investor-State dispute settlement
(ISDS) cases and India: affronting
regulatory autonomy or indicting
capricious state behaviour?.(Electronic Thesis or Dissertation). Retrieved from https://localhost/etd