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India and Bilateral Investment Treaties: Refusal, Acceptance, Backlash by Prabhash RANJAN. Oxford/New Delhi: Oxford University Press, 2019. ix + 344 pp. Hardcover: £44.99; available in Oxford Scholarship Online. doi:10.1093/oso/9780199493746.001.0001

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India and Bilateral Investment Treaties: Refusal, Acceptance, Backlash by Prabhash RANJAN. Oxford/New Delhi: Oxford University Press, 2019. ix + 344 pp. Hardcover: £44.99; available in Oxford Scholarship Online. doi:10.1093/oso/9780199493746.001.0001

Published online by Cambridge University Press:  05 November 2021

Dilini PATHIRANA*
Affiliation:
Faculty of Law, University of Colombo, Sri Lanka
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Abstract

Type
Book Review
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

India's approach to foreign investment and the international investment agreements (IIAs) are important issues on which there has been comparatively little academic literature. Against this backdrop, Professor Ranjan has undertaken to critically evaluate India's past and present approach to IIAs by providing insights into India's approach in her future investment treaty-making process. The book contains nine well-written chapters which examine India's approach to foreign investment and IIAs under three phases, namely “refusal”, “acceptance”, and “backlash” using the orthodox dichotomy between the private interests of the foreign investors and the public interests of the host state as the moot point. The book has made a commendable attempt to develop a strong thesis on why India should evolve its investment treaty-making practice based on the twin frameworks of the international rule of law and embedded liberalism.

In doing so, Professor Ranjan underscores the hypocrisy of the country's liberal economic approach to foreign investment and its protectionist legal approach to the investment treaty regime in the “backlash” phase. The author has used this hypocrisy as the yardstick by which the phase of “backlash” is differentiated from the phases of “refusal” and “acceptance”, in which India's economic approach to foreign investment was aligned with its approach towards the protection of foreign investment under international law. The author analyses the increased exposure of India to treaty-based investment claims, particularly the claim which scrutinized the efficacy of the Indian judiciary, as the critical juncture at which the country embraced a restrictive approach towards the IIAs. While adopting a critical attitude towards the country's reactive measures in this respect, Professor Ranjan observes that all the treaty-based investment claims brought against India, thus far, challenged the abuse of its exercise of public power in relation to investors rather than confronting public welfare regulations such as in the famous investment treaty claim brought by Philip Morris against Australia and Uruguay. The author, however, does not deny the vulnerability of country's public welfare regulations to being challenged by foreign investors based on the existing web of Indian investment agreements.

This vulnerability has persuaded Professor Ranjan to suggest embedded liberalism as the normative framework upon which India should premise its investment treaty-making practice to safeguard the country's regulatory authority over foreign investments, rebalancing the asymmetrical character of India's BITs signed in the phase of “acceptance”, which were based on laissez-faire liberalism. Nonetheless, the author rejects the idea of providing the host state with unfettered regulatory authority, raising his critical voice against the 2016 Indian Model BIT. Such criticisms, however, do not underestimate India's decision to reconsider the content of investment agreements in the light of their impact on the county's regulatory authority. Instead, Professor Ranjan insists on the necessity of having a constructive national discourse on the country's engagement with the investment treaty regime, with India being a prudent actor rather than a radical reactor provoked by the investment treaty claims brought against the country. The author justifies such an approach underscoring the fact that capital exports by Indian investors are on the rise, whereas Indian investors have successfully invoked Indian BITs to protect their outward investments against infringing host states.

Embedding all these arguments into the broader theme of the international rule of law, Professor Ranjan highlights the significance of India's support for a fair and transparent investment treaty regime that is acceptable to all stakeholders in the field of foreign investment. The fundamental thesis of the book, accordingly, supports the idea of reconceptualizing the investment treaty regime as a normative (legal) framework within which states should exercise their sovereign or public power with respect to foreign investors, ensuring that the regime serves the fundamental purpose for which it was created without imperiling a state's right to regulate in the public interests.

Footnotes

This article has been updated since original publication and the error rectified in online PDF and HTML versions. A notice detailing the changes has also been published at https://doi.org/10.1017/S2044251322000017.