Papers by Aniruddha Rajput
Routledge eBooks, Oct 17, 2023
Manchester Journal of International Economic Law, 2023
Case Reviews Annual Review of ICSID Cases, 2023 Cases decided by tribunals and ad hoc annulment c... more Case Reviews Annual Review of ICSID Cases, 2023 Cases decided by tribunals and ad hoc annulment committees this year (December 2022-November 2023), as in the past, covered a wide range of sectors, such as: hydrocarbon exploration and exploitation activities and marketing, importing and exporting oil and oil products; 1 hydropower energy generation; 2 privatization of the coal mine and the right of the shareholders to claim protection after termination of the share transfer agreement; 3 investments in the phosphates industry; 4 exploration and development of nickel sulphide deposits; 5 forfeiture of shares of an entity running dairy farm after cancellation of the contract by the State entity; 6 and, conglomerate working in several sectors such as mining, energy and media, alleging several breaches of treatment standards through various actions of the government. 7
Manchester Journal of International Economic Law, 2023
Case Reviews Annual Review of ICSID Cases, 2023 Cases decided by tribunals and ad hoc annulment c... more Case Reviews Annual Review of ICSID Cases, 2023 Cases decided by tribunals and ad hoc annulment committees this year (December 2022-November 2023), as in the past, covered a wide range of sectors, such as: hydrocarbon exploration and exploitation activities and marketing, importing and exporting oil and oil products; 1 hydropower energy generation; 2 privatization of the coal mine and the right of the shareholders to claim protection after termination of the share transfer agreement; 3 investments in the phosphates industry; 4 exploration and development of nickel sulphide deposits; 5 forfeiture of shares of an entity running dairy farm after cancellation of the contract by the State entity; 6 and, conglomerate working in several sectors such as mining, energy and media, alleging several breaches of treatment standards through various actions of the government. 7
Brill | Nijhoff eBooks, Jul 19, 2023
‘International Law and Non-military Pre-emptive Strike by India in Pakistan’ in Virendra Ahuja and others (ed.), International Law: Contemporary Developments (Essays in Honour of Professor AK Koul) (Satyam Law International, 2021)., 2021
ICSID Review: Foreign Investment Law Journal, Jun 1, 2022
Netherlands Yearbook of International Law, 2023
Netherlands Yearbook of International Law, 2021
Climate justice is a part of the preamble of the Paris Agreement, hence a context for treaty inte... more Climate justice is a part of the preamble of the Paris Agreement, hence a context for treaty interpretation. It captures the need to protect the interests of those most affected by climate change having made the least contribution. To achieve climate justice all States need to comply with their obligations under the climate change agreements and particularly the Paris Agreement. The question is can States then defend such measures on the ground of climate justice when challenged before investment tribunals. The climate change agreements are such structured that if States do not undertake maximum regulatory measures to protect climate change they may be held responsible for failure to comply with their obligations under the climate change agreements. This chapter argues that there are sufficient interpretative tools allowing States to undertake climate change regulations without being found responsible for violations of investment treaties. For this purpose, obligations under climate A. Rajput (B) Withers LLP,
Public Actors in International Investment Law, 2021
National courts are actors in investment arbitration since they influence the functioning of inve... more National courts are actors in investment arbitration since they influence the functioning of investment arbitration and are themselves in turn influenced by investment arbitration. The influence of national courts on investment arbitration is larger than the influence of other international courts and tribunals, since national law is part of the applicable law in investment arbitration and national courts are authorised to interpret and apply national law. National courts influence investment arbitration by competing for jurisdiction through the exhaustion of local remedies, umbrella clauses, and the fork-in-the-road rule. National courts facilitate investment arbitration by enforcing awards and at the same time disrupt it when rejecting enforcement or issuing anti-arbitration injunctions. Investment tribunals can restrain national courts by issuing anti-suit injunctions. Above all, they can review the decisions of national courts on grounds of denial of justice, fair and equitable ...
ICSID Review - Foreign Investment Law Journal
Pace International Law Review Pace International Law Review Volume 34 Issue 2 Spring 2022, 2022
The incidents of terrorism have multiplied and so have the routes through which the terrorists re... more The incidents of terrorism have multiplied and so have the routes through which the terrorists reach their targets. There is a threat of a terrorist attack from the sea route aimed at targets on the land. Until now the academic scholarship as well as treaty practice has focused on challenges of terrorism to the safety of navigation rather than terrorist threats originating from the sea. Efforts at treaty making in this direction in the past are inadequate to address the problem. This article analyses the legal framework within which response may be undertaken to neutralize a terrorist threat through preventive action or after the terrorist act has been committed. It is argued that it is possible for a coastal state to stay within the purview of the United Nations Convention on the Law of the Sea (UNCLOS) and take necessary actions against a terrorist vessel. All states are under an international obligation to suppress terrorism. Moreover, the UNCLOS mandates that the seas and oceans have to be used for peaceful purposes. There may not be an explicit reference to taking action against a terrorist vessel, yet there is adequate support for such an action as per the interpretation of various provisions of the UNCLOS. Although the extent of control exerted by the coastal state in the territorial sea, contiguous zone, continental shelf, Exclusive Economic Zone and the high seas varies yet in all these maritime zones coastal states can undertake necessary actions.
The Indian Yearbook of Comparative Law
The fair and equitable standard (FET) in investment treaties is one of the most frequently invoke... more The fair and equitable standard (FET) in investment treaties is one of the most frequently invoked standards for protection of foreign investment. The absence of precise scope and contents in the text of the standard has led to arbitral tribunals interpreting it broadly and innovatively. One such element said to be a part of the standard is the protection of ‘legitimate expectations’ of an investor. The concept of legitimate expectations, fundamentally a domestic administrative law concept, has been transposed to international law through investment arbitration disputes and has now become an important principle constituting the FET standard. It is therefore important to inform the application of the principle of legitimate expectations in international investment law with its evolution and application in the domestic laws. This chapter conducts a comparative analysis of the evolution and application of the principle in administrative law of UK, India and Australia and attempts to identify the basic contours of the principle which may aid in ameliorating its application in investment arbitration disputes.
The International Rule of Law
This chapter analyses the influence of the BRICS countries as ‘rising powers’ on international la... more This chapter analyses the influence of the BRICS countries as ‘rising powers’ on international law. It argues that a focus on these powers provides an appropriate index for the current development of international law. It studies the participation and influence of BRICS in the shaping of legal norms and institutions, thereby throwing light on their conceptualization of international law and the future of international law. It concludes that the activities of BRICS countries and other rising powers represent qualitative as well as quantitative progress. For the author, the current state of international law may appear to be in a state or crisis or stagnation, but has potential for rising.
Maritime Affairs: Journal of the National Maritime Foundation of India
Indian Journal of International Law
It has been a year since the ICJ for the first time declined jurisdiction because the respondent ... more It has been a year since the ICJ for the first time declined jurisdiction because the respondent was not aware that there was a dispute – the “objective awareness” test. The court was deeply divided on this issue, and the decision has been widely criticized for its adoption of the objective awareness test. This article argues that the Court was correct in applying the objective awareness test. The awareness of the respondent has always been found by the PCIJ and ICJ – whether directly or indirectly – and there are sound policy reasons that necessitate it. Firstly, for a dispute to exist for the ICJ to exercise jurisdiction, the extent of disagreement between the parties has to reach a certain degree of seriousness. Such a degree of seriousness cannot exist if the respondent is unaware of the dispute. Secondly, unlike the observation by the judges in the minority, the objective awareness test flows from the jurisprudence of the PCIJ and the ICJ. Thirdly, flexibility at the stage of jurisdiction does not imply that the dispute has to be routinely held to exist. Fourthly, if the respondent is caught unaware and surprise litigation is allowed, it will undermine the confidence of States in the international adjudication process, particularly those that have accepted the compulsory jurisdiction of the ICJ. Lastly, it would make the expression of disagreement at multilateral negotiations impossible. States will be uncomfortable expressing their views freely since in every disagreement there would be roots of a dispute.
Indian Journal of International Law, 2017
In past, various attempts at creating a multilateral treaty for the protection of foreign investm... more In past, various attempts at creating a multilateral treaty for the protection of foreign investment have failed. Yet, scholars have tried to fill in the void through theoretical arguments to the effect that even in the absence of a multilateral treaty, the bilateral investment treaties create a multilateral normative framework. This framework imposes external disciplines on States. These theoretical arguments do not find any basis in the treaty text and result into expanding the scope of standards of treatment provided in the bilateral investment treaties (BITs). The first part establishes that States are not ready for a multilateral treaty on investor protection and the reasons for this position based on past experiences. The theoretical arguments used as a substitute for a multilateral treaty have various aspects. It is claimed that the BITs have created a framework which is uniform due to a large number of BITs and consistency in their language. BITs allow corporate restructuring and contain Most Favoured Nation (MFN) clause, which allows any foreign investors to choose the most beneficial BIT to file a claim and most beneficial provision from the all the BITs entered into by the host state. This process is said to have resulted into multilateralization – another form of a multilateral framework. These arguments do violence to the treaty language and stretch the treaty text beyond its purview. The extravagant interpretations proposed by scholars and adopted by tribunals have forced the regime of investment arbitration into an uncertain future.
Jindal Global Law Review, 2016
India is the highest importer of foreign capital. The rights of foreign investors are protected t... more India is the highest importer of foreign capital. The rights of foreign investors are protected through investment treaties, most of which are bilateral. India has recently issued a model bilateral investment treaty (BIT), which would form the basis for negotiating all future BITs. Model BIT is therefore an important statement about state practice. The recently issued Model BIT of 2015 introduces drastic changes in comparison to the 2003 Model BIT. The circumstances of the 2015 Model BIT are very different from the 2003 Model BIT and the change in circumstances has been accounted for the changes that have taken place in the 2015 Model BIT as compared to the 2003 Model BIT. The 2003 Model BIT followed a capital exporting country model, as India was still predominantly a capital exporting state. The 2015 Model BIT aims to protect India’s regulatory space while allowing protection to foreign investors under the BIT. This article analyses the shift in the treaty practice. This Model BIT brings about changes in the definition, jurisdiction, and the scope of protection, access to dispute resolution and introduction of exceptions and carve out provisions. The 2015 Model BIT seeks to reduce India’s exposure to potential investment claims. This shift in treaty practice is important since it has tendency to influence interpretation of treaties.
SSRN Electronic Journal
This paper narrates the changes in the Indian policy towards foreign investment and analyses them... more This paper narrates the changes in the Indian policy towards foreign investment and analyses them in the backdrop of overall changes in the field of international law and particularly within the framework of the international rule of law. The policy changes that have taken place in India can be categorised into three periods. The first period commences after independence from colonial rule. This period is intriguing. At the international level, India insisted on national treatment for foreign investment and supported the New International Economic Order. Domestically, however, nationalisation was not pursued, and even when pursued, was not applied to foreign investors. This period continued until the 1990s when India faced serious economic problems and this coincided with the high point of the Washington consensus, often seen as the rise of the international rule of law. During this time, national treatment was abandoned and innumerable investment treaties granting liberal protection were entered into. This process ended abruptly after India lost the first investment case. This turn of events comments the third period, where efforts were made towards balancing between investor protection and conserving regulatory freedom. Although this period may appear to be a decline of the international rule of law, a nuanced approach shows that it is rather a rise. India has not withdrawn from the system of investor protection, as has been done by some other States. This period is characterised by extensive and detailed treaties to replace the prior sketchy treaty provisions. This is a move towards a more rule based investment protection. * I thank Professor Heike Krieger, Professor Georg Nolte and Professor Andreas Zimmermann for the invitation to be a part of the research group and their helpful comments and suggestions. I thank Sarthak Malhotra, Eva Ritte, Lars Schlenkhoff, Sophie Schuberth, Lukas Willmer and Julian Kulaga for their research assistance and other members of the research group for their helpful comments and suggestions.
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Papers by Aniruddha Rajput