International Investment Agreements and Regulatory Discretion: Case Study of India

Abstract

International Investment Agreements (IIAs), signed by countries to protect and boost investment, restrict the regulatory discretion of these countries. This dissertation examines Indian IIAs and how they impact India’s regulatory discretion by analysing four features namely definition of foreign investment, Most Favoured Nation, National Treatment and Expropriation. India is pursuing a vigorous IIA programme aimed at attracting foreign investment. Indian IIAs contain broad provisions without delineating circumstances in detail where India could move away from investor protection to exercise regulatory discretion to pursue public policy objectives or undertake legitimate differentiation between investments. One important safeguard in the Indian IIAs that preserves regulatory discretion is that all investments are subject to national laws. Nevertheless, the dissertation argues that in the backdrop of the investor state case law emerging in international investment law, Indian IIAs need to be drafted more precisely to strengthen India’s regulatory discretion.