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Report No. 260

1.8 Subsequently, the Government undertook a review of the text of its 2003 Model. In March 2015, the Government made public a new draft Model Indian Bilateral Investment Treaty (referred to as the '2015 Model' in this Report).17 The objective of the 2015 Model, as stated on the Government's website, was "to provide appropriate protection to foreign investors in India and Indian investors in the foreign country, in the light of the relevant international precedents and practices, while maintaining a balance between the investor's rights and the Government obligations."

The Government added that the 2015 Model would form the basis for negotiations with other countries.18

17 Model Text for the Indian Bilateral Investment Treaty, March 2015, available at:
https://mygov.in/sites/default/files/master_image/Model%20Text%20for%20the%20Indian%20Bilateral%20Investment%20Treaty.pdf

18 Call for comments on the 2015 Model available at:
https://mygov.in/group-issue/draft-indian-model-bilateral-investment-treaty-text/

1.9 The Law Commission of India (the Commission) undertook an initial study of the 2015 Model, and found that the text has some concerns that could be addressed before it is finalised. The Commission communicated the same to the Finance Minister in its letter dated 8 April 2015. Thereafter, the Commission set up a Sub-Committee of experts to study the 2015 Model in greater detail. The experts included practitioners and academicians with experience in investment treaty law and investment arbitration. The members of the Sub-Committee were:

1. Justice Ajit Prakash Shah, Chairman

2. Justice Usha Mehra, Full-time member

3. Justice S. N. Kapoor, Full-time member

4. Prof. Mool Chand Sharma, Full-time member

5. Prof. Yogesh Tyagi, Part-time member and Dean, Faculty of Legal Studies - South Asian University

6. Mr. Shishir Dholakia, Senior Advocate

7. Mr. Gourab Banerji, Senior Advocate & Barrister, Overseas Associate - Essex Court Chambers, London

8. Dr. Prabhash Ranjan, Assistant Professor - South Asian University

9. Mr. Anirudh Wadhwa, Advocate

10. Mr. Anirudh Krishnan, Advocate

11. Ms. Manisha Singh, Advocate

12. Mr. Aniruddha Rajput, Advocate

13. Mr. Vyom D Shah, Advocate

14. Mr. Sriharsha Peechara, Advocate

15. Ms. Adwaita Sharma, Advocate

16. Ms. Smriti Parsheera, Advocate

17. Mr. Ashutosh Ray

18. Mr. George Pothan Poothicote, Advocate and Consultant (Legal & Treaties) - Ministry of External Affairs

19. Ms. Sumathi Chandrashekaran, Advocate and Consultant, Law Commission

Researchers:

1. Mr. Pranay Lekhi

2. Mr. Sanjeevi Seshadri

1.10 The Sub-Committee received valuable guidance from Mr. Fali Sam Nariman, Senior Advocate.

1.11 The Sub-Committee met several times and discussed the 2015 Model in great detail, also studying existing BITs and model BITs from other jurisdictions, and undertaking an extensive review of the subject.

1.12 Based on the study submitted by the Sub-Committee, the Commission has made certain suggestions on specific clauses of the 2015 Model in the form of the present Report. The Report is presented with a view to assist the Government in achieving a balanced negotiating text, that takes into consideration the protection of Indian investors investing abroad, as well as safeguarding the regulatory powers of the State.

This Report is divided into chapters that are aligned with the chapters of the 2015 Model. It provides an article-wise analysis and comment, but restricts its commentary to only on those articles where the Commission believed there could be changes made to the text. The analysis and comment for each article is accompanied by a suggested draft, which provide either precise treaty language as optional alternatives to the existing draft text, or general suggestions.



Analysis of the 2015 Draft Model Indian Bilateral Investment Treaty Back




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