The new issue of Investment Treaty News is out, and my piece in it looks at Chabahar.
I track regulatory change and commercial exposure across India’s cross-border corridors. That is a market and practice positioning vantage point rather than a doctrinal one, and it is why the part of Chabahar I was attracted to was the structure rather than the politics.
Most of the commentary has asked whether India’s move amounts to a retreat. A stake transferred to a local entity, with an arrangement to resume control if sanctions ease, is a commercial structure before it is anything else. I did not find any examination done on the influence of this specific commercial structure on the investment protection position underneath appears not to have been examined. I researched and wrote about that problem.
The reason to read the structure is that it is still being decided. Once the transfer is executed on those terms, the treaty position is settled and can only be argued about later. Read it while the arrangement is being negotiated and the terms that determine protection are still terms someone can change.
My piece was in good company: A senior policy advisor at IISD on the new EU foreign investment screening regulation meeting old-generation treaties; An international law scholar with a doctorate in international and EU law on climate considerations in environmental impact assessments; An ICSID tribunal assistant and independent counsel on a tribunal discounting an award for energy transition uncertainty; A policy advisor at IISD on the unregulated rise of award monetisation.
Four of those describe states changing the rules and investors holding treaty protection anyway. My piece dwells on where the state is the investor and a third country’s sanctions are what force the change. The doctrinal questions in both categories turn out to be adjacent, mine is the only one focussing on the Asia corridor.
Incidentally, in the news: Singapore has bid to host the multilateral investment tribunal under negotiation at UNCITRAL. For anyone working on Asian dispute corridors, that is not a small thing.
Lawfinity Solutions advises international law firms on cross-border legal market positioning. If the India corridor is a live question for your firm, we would be interested in a conversation. Lawfinity works with one firm per jurisdiction. Engagements begin with a single conversation about your firm’s current position and where the corridor question is live for you. Write to Prachi Shrivastava
