Abstract
As one of the very few Bilateral Investment Treaties (BITs) signed by India post-revision of Model BIT in 2015, the Indo-Taiwan BIT is remarkable in several respects, especially from an anti-treaty shopping point of view. Recognizing that “indirect investment” poses some of the major treaty shopping concerns, the BIT defined “indirect investment” and mandated that the disputing investor may submit a claim under the BIT only if certain mandatory waivers are filed along with the claim. Also, by granting conditional access to investor-state arbitration, the BIT prescribed several rigorous conditions in the form of waivers against parallel actions to deter investors from pursuing parallel or multiple proceedings, especially when they are considering investor-state dispute settlement as an effective option. Moreover, in addition to the provision for a stronger denial of benefits clause, the BIT also provides for a novel ground for denial of benefits i.e., an investment or investor that has been established or restructured with the primary purpose of gaining access to the dispute resolution mechanism. However, the same BIT, by providing for a loose definition of the term “investor,” chose not to lay down any criteria to determine the nationality of individuals. It did not recognize the test of dominant and effective nationality. It also did not incorporate any specific provision to exclude claims by investors who hold the nationality of the disputing party. In this connection, this Article critically analyses the Indo-Taiwan BIT regime and finally concludes that the BIT has great potential to effectively fight against treaty shopping.
Recommended Citation
S. R. Subramanian,
A Critical Review of the Anti-Treaty Shopping Features of the Indo-Taiwan Bit,
35 Fla. J. Int'l L.
49
(2023).
Available at: https://scholarship.law.ufl.edu/fjil/vol35/iss1/2