In this paper, the researchers examine the interactions between bilateral investment treaty arbitration and Indian courts through a study of three domestic court cases.
Prabhash Ranjan, Senior Assistant Professor, Faculty of Legal Studies, South Asian University, New Delhi, India [He is currently Professor and Vice Dean (Continuing Education), Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India.]
Pushkar Anand, Assistant Professor, Faculty of Law, University of Delhi, New Delhi, India.
Indian courts have had limited opportunities to deal with bilateral investment treaty (BIT) arbitrations. In this paper we examine the interactions between BIT arbitration and Indian courts through a study of three domestic court cases arising in context of anti-arbitration injunctions in BIT arbitration.
These three cases are Port of Kolkata v LDA, India v Vodafone, and India v Khaitan.
The common aspect in all these three cases is that they arose in the context of the Indian government approaching the domestic courts to interfere in BIT arbitrations. In all these cases, India sought anti-arbitration injunctions from the domestic courts so as to refrain foreign investors from pursuing arbitration under various BITs.
Although the backdrop of these cases was the pursuit of anti-arbitration injunctions, they presented a unique opportunity to the Indian courts to directly address issues related to international investment law within the municipal law setting, the researcher said.
Through these three cases, for the first time, Indian courts have thrown light on issues such as jurisdiction of domestic courts on matters pertaining to BIT arbitration, the applicability of the Indian Arbitration and Conciliation Act, 1996 (‘A&C Act’) to BIT arbitration and questions surrounding “abuse of process” by foreign investors.
Two out of three cases held that the A&C Act does not apply to BIT arbitration. On “abuse of process”, the courts held that these questions should be addressed by BIT arbitration tribunals and not by domestic courts.
Published in: Indian Law Review
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