The 20th Law Commission was constituted under the Chairmanship of Justice Ajit Prakash Shah (Former Chief Justice of Delhi High Court) to study specific clauses, in line with Government’s objective to encourage " doing business" in India. Report No.260 titled " Analysis of the 2015 Draft Model Indian Bilateral Investment Treaty" for consideration by the Government. The Report is more in the form of article-wise analysis and comments proposed for amendments thereon was submitted to the Ministry of Law and Justice on 27th August 2015.
Analysis and comments along with the proposed Draft were submitted for the undermentioned Articles by the Department of Economic Affairs, Ministry of Finance.
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CHAPTER |
ARTICLES |
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II- PRELIMINARY |
Article 1 – Definitions Article 2 - Scope and General Provisions |
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III- OBLIGATIONS OF THE PARTIES |
Article 3: Standard of Treatment Article 5. Expropriation Article 6. Transfers (Monetary Transfer Provisions) Most Favoured Nation (Absent provision) |
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IV - INVESTOR, INVESTMENT, AND HOME STATE OBLIGATIONS |
Article 9. Obligation against Corruption Article 10: Disclosures Articles 11 and 12. Taxation and Compliance with Laws of Host State Article 13 - Home State Obligations |
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V – DISPUTE SETTLEMENT |
Article 14.1. Purpose Article 14.2(ii). Instances where ISDS mechanism is not applicable Article 14.3. Exhaustion of local remedies, Notice and Consultation. Article 14.4(4). Additional conditions precedent for submission of the dispute to arbitration. Article 14.5. Appointment of arbitrators. Article 14.6. Prevention of conflict of interest of arbitrators and challenges. Article 14.8. Transparency in arbitral proceedings. Article 14.9. The burden of proof and governing law. Article 14.10. Award. |
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VI – EXCEPTIONS |
Article 16. General exceptions. |
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VII – FINAL PROVISIONS |
Article 19. Relationship with other Treaties. Article 20. Denial of Benefits. Article 21. Consultations and Periodic Review Article 22: Amendments. Article 23: Entry into Force Article 24: Duration and Termination |
PRESENT STATUS OF REPORT
Investment Division, Department of Economic Affairs, Ministry of Finance had circulated to various academicians and experts working on the subject for their comments. Consultations on the Model BIT were held with industry groups like FICCI, CII, ASSOCHAM, and law firms. Comments were also received from Organisations, Law schools, and Universities which included Law Commission of India, Permanent Court of Arbitration, Hague, Forum against FTAs, South Centre, Geneva, United States India Business Council and Hind Mazdoor Sabha.
CONCLUSION
The Report has been considered for revising the Model Bilateral Investment Treaty. The revised Model BIT Text was approved by the Cabinet on 16th December 2015. Hence the present status of the Law Commission Report No.260 is taken as " Implemented/Accepted".
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