ISDS Transparency Provisions in the Indian Model BIT: A Half-Hearted Attempt?

Abstract

Lack of transparency in investor-State dispute settlement (ISDS) proceedings has been a major concern for quite some time. Efforts at different levels have been made to boost procedural transparency in ISDS proceedings either by reforming the rules of institutionalised arbitrations or by incorporating provisions to improve procedural transparency in ISDS in the newer generation BITs. This article discusses procedural transparency in the ISDS provisions in the Indian Model BIT under three heads - public access to ISDS-related documents; public access to ISDS hearings; and submission of amicus briefs to ensure greater public participation. The article finds that that the Indian Model BIT has incorporated provisions, as part of the ISDS chapter, to enhance procedural transparency, which is a significant improvement over the 70 odd BITs that India has signed. However, the Indian Model BIT still falls short of attaining high levels of procedural transparency in ISDS especially on the issue of submission of amicus curiae briefs.