The White Industries Australia Limited - India bit Award: a Critical Assessment

Abstract

In recent times, the White Industries – India Award[1][1] (BIT Award) has created quite a stir. In short, it holds India liable for damages for judicial delays of over nine years in enforcing an ICC Award between White Industries Australia Ltd. (White) and an Indian Government company, Coal India. The delay in enforcement by the Indian courts was held to deprive the Australian investor of ‘effective means of asserting claims and enforcing rights’ – an obligation contained in the Kuwait-India BIT, which the Tribunal held the Australian investor could take advantage of relying on the most favoured nation (MEN) clause in the bilateral investment treaty between Australia and India. The BIT Award has far reaching implications. At one level, it is an indictment of the Indian judicial system (as one not affording ‘effective means of asserting claims and enforcing rights’). At another, it opens the doors to disappointed foreign litigants to seek similar relief and make court delays and other judicial shortcomings actionable per se. The Award throws up jurisprudential issues of the role, responsibility and independence of national courts and brings into focus the future ofBITs and BIT arbitrations.[2][2] Some issues which come up are: if an arbitral award is an ‘investment’ under Bilateral Investment Treaties; does an MFN clause extend to incorporation of a third-party treaty; scope of the ‘effective means of asserting claims and enforcing rights’ clause – and more particularly if it furnishes a cause of action to an investor if the host country's judicial system and institutions fall short of an ‘objective international standard’. This article presents a critical analysis of the BIT Award and my views as to why it is erroneous and ought not to become a precedent in investment arbitrations. [1]: #fn-1 [2]: #fn-2