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46 Geo. Wash. Int'l L. Rev. 809 (2013-2014)
Bilateral Investment Treaties and the Indian Judiciary

handle is hein.journals/gwilr46 and id is 871 raw text is: BILATERAL INVESTMENT TREATIES AND THE INDIAN JUDICIARY PRABHASH RANJAN* & DEEPAK RAJU* ABSTRACT India has entered into bilateral investment treaties (BITs) with eighty- six countries. Of these BITs, seventy-three have already come into force. Despite this massive BIT program, BITs in India did not attract much attention untilforeign investors used BITs to slap India with investment treaty arbitration (ITA) notices. These foreign investors, ranging from telecommunication companies to hedge funds, have challenged a host of state measures like license cancellation by courts and retrospective taxes. The use of BITs to challenge actions of Indian courts has raised concerns in India regarding BITs encroachment of India's judicial sovereignty. These ITA notices against actions of the Indian judiciary have triggered a debate in India as to whether the ITA may be invoked against judicial actions (and omissions) at all. India's top legal officer at the time of the claims stated that such notices were untenable. In this regard, this Article examines whether the investors can bring BIT claims against India for the actions of the Indian judiciary. The Article discusses the international law of attribu- tion, India's limited ITA experience where judicial action or inaction has triggered BIT claims against India, and BIT jurisprudence on claims against states due to judiciary acts. The Article concludes by pro- posing how India could reduce the interface between BITs and the Indian judiciary given its sensitivities to BIT claims against judicial actions. I. INTRODUCTION Bilateral investment treaties (BITs) are often between two coun- tries aimed at protecting investments made by investors from either country in the territory of the other.' BITs protect investments by * Chevening Scholar and Assistant Professor, Faculty of Legal Studies, South Asian University. Ph.D. 2013, King's College London; LL.M. 2007 with distinction, University of London; LL.B. 2003, University of Delhi. Professor Ranjan can be reached at pranjanl278@gmail.com. Some parts of this Article draw from the author's work on India's BIT programme: India and Bilateral Investment Treaties-A Changing Landscape, 29 ICSID REV.-FOREIGN INVESTMENT L. J., 419, 419-50, no. 2 (2014). ** LL.M. 2013, Cambridge University; LL.B. 2011, West Bengal National University of Juridical Sciences. 1. For a general discussion on bilateral investment treaties (BITs), see RUDOLF DOLZER & CHRISTOPH SCHREUER, PRINCIPLES OF INTERNATIONAL INVESTMENT LAW 13-14 (2d ed. 2012); ANDREW NEWCOMBE & LLUIS PARADELL, LAW AND PRACTICE OF INVESTMENT TREA- 809

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