A Bit of a Reset: Revising India’s Model Bilateral Investment Treaty with a Wider Debate

UPSC Mains GS Paper II Polity & Governance

A Bit of a Reset: Revising India’s Model Bilateral Investment Treaty with a Wider Debate

India is revising its 2015 Model BIT to attract more FDI β€” but should the revision itself go through greater parliamentary and public consultation, not just the executive?
Infographic on India's revision of its Model Bilateral Investment Treaty
India’s 2015 Model BIT is being revised amid calls for a more consultative treaty-making process.
Landmark BIT Case
White Industries v. India (2011)
Old Local-Remedy Rule
5 years before arbitration
Constitutional Basis
Article 73 & 253
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Why in News

  • India is revising its 2015 Model Bilateral Investment Treaty (BIT), with the new draft expected before the Union Cabinet soon β€” aiming to be more investor-friendly and boost declining FDI while protecting Indian companies investing abroad.
  • Key issue: should the revision involve greater parliamentary consultation and democratic oversight, rather than being handled only by the executive?

What is a BIT?

  • A reciprocal agreement to promote and protect private investments between two countries, legally enforceable under international law, tracked by UNCTAD.
  • Standard protections: National Treatment, Fair and Equitable Treatment (FET), protection from Expropriation, and Investor-State Dispute Settlement (ISDS).
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Why India Overhauled Its Treaties in 2015

  • White Industries v. India (2011): India’s first adverse ISDS award β€” exposed how court delays could become a treaty breach.
  • Vodafone and Cairn Energy disputes: arose from retrospective taxation; India faced a large compensation award in Cairn’s case and scrapped retrospective taxation in 2021.
  • By 2015, India faced ~17 known BIT claims, rising further since β€” leading it to conclude broad investor protections could seriously constrain the state’s right to regulate.

Limitations of the 2015 Model BIT

  • Narrow investment definition: excluded portfolio and some indirect investments.
  • 5-Year Local Remedy Rule: investors had to exhaust Indian courts first β€” a major obstacle given judicial delays.
  • Reduced protection: MFN clause removed; FET narrowed to a limited list.
  • Broad exemptions: taxation, subsidies, procurement, compulsory licences and national security largely excluded.
  • Result: India signed very few BITs under this model; recent India-UAE and India-Israel BITs signal a shift toward a more balanced approach.
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The Core Argument: “Democratic Deficit” in Treaty-Making

  • International economic treaties affect citizens through jobs, prices, regulatory space and revenue β€” invoking the “all-affected principle.”
  • Democratic Deficit: insufficient oversight of technocrats/executive negotiating treaties behind closed doors β€” showing up as weak parliamentary supervision and absent external consultation.
  • Indian position: treaty-making is mainly an executive power (Article 73); Parliament can legislate to implement treaties (Article 253), but usually gets involved only after signing, not before.

Global Best Practices

  • UK & Australia: treaty texts go before Parliament before ratification. Norway & Colombia: public consultation while framing Model BITs.
  • India: invited public comments on its 2015 draft; the Law Commission’s 260th Report gave recommendations, not all adopted.
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Way Forward: A Concrete Roadmap

Step 1 β€” Expert Core Team
International lawyers/economists external to government as a sounding board.
Step 2 β€” Stakeholder Consultation
Invite industry bodies, arbitrators, law firms, civil society.
Step 3 β€” Public Consultation
Place the draft in the public domain for comments, as done in 2015.
Step 4 β€” Parliamentary Scrutiny
Discuss on the floor of Parliament; involve Standing Committees on External Affairs/Commerce.
The golden rule: this process must be genuine participatory democracy, not a box-ticking exercise β€” engaging with dissenting views, not just formal sign-off.
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Analytical Insight

  • Balancing Investor Protection and State Regulation: too much protection limits the state’s regulatory freedom; too much state power (as in 2015) discourages FDI.
  • India as a Capital Exporter: with growing outbound investment, India needs treaties protecting both inbound and outbound investors.
  • Federalism: treaties can affect State List subjects via Article 253 β€” consulting States strengthens cooperative federalism.
  • Domestic Reforms Matter Too: faster courts and predictable regulation are as important as the treaty text itself.

India’s revision of the 2015 Model BIT is a welcome step to boost investment. But reform should focus not only on what the treaty says, but also on how it is made β€” parliamentary scrutiny, expert advice and public consultation can make it more transparent, legitimate and durable.

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Source: The Hindu

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