In the second half of 20th century the central theme of foreign investment debates was on balancing conflicting interests between developed and developing countries. As one of the most visible signs of this tendency is the process of revising bilateral investment treaties (BITs). This paper has focus on two countries, India and Indonesia. These two countries have been selected not only because of their size and importance for foreign investors, but also because of important reforms regarding BITs undertaken by these two countries that have attracted worldwide attention, particularly in other developing countries. These two countries have taken different routes, but motivated by similar concerns and objectives, and represent some of the most striking examples of the new tendency towards revision of BITs. The key issue that will be explored in this text is: What can be expected from this process of revising BITs and do the new BITs model provide for a good balance between the interests of host states and foreign investors? This is the core issue of foreign investment law, from the perspective of developing countries, which raises several further questions: How to design foreign investment law so that foreign investment can be attracted without impairing the interests of the host states? Is that possible at all, and what would be the good balance that developing countries should aim at? And, the central issue of this paper is: Do new BITs models contribute to these objectives of developing countries?
Legal documents Permanent Courrt of Arbitration. Yukos Universal Limited (Isle of Man) v. The Russian Federation, PCA Case No. AA 227, (July 18, 2014). White Industries Australia Limited v. Republic of India, UNCITRAL, Final Award (Nov. 30, 2011) ICSID. Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco, ICSID Case No. ARB/00/4. ICSID. Churchill Mining Plc and Planet Mining Pty Ltd v. Republic Indonesia, ICSID Case No. ARB/12/14 and 12/40 award on 29 November 2016. ICSID. Nusa Tenggara Partnership B.V. and PT Newmont Nusa Tenggara v. Republic of Indonesia, ICSID Case No. ARB/14/15. Books and book chapters Jailani, Abdulkadir. “Indonesia’s Perspective on Review of International Investment Agreement” in Rethinking Bilateral Investment Treaties Critical Issue and Policy Choices, edited by Kavaljit Singh and Burghard Ilge, 113-128. Amsterdam and New Delhi: Both Ends, Madhyam, Somo, 2016. Poulsen, Lauge. Bounded Rationality and Economic Diplomacy: The Politics of Investment Treaties in Developing Countries. Cambridge University Press, 2015. Ranjan, Prabhash. “Investment Protection and Host State’s Right to Regulate in the Indian Model Bilateral Investment Treaty Lessons for Asian Countries.” in Asia’s Changing International Investment Regime, edited by Julien Chaisse et al, 192-211. (Singapore: Springer, 2017), 48. Sornarajah, M. “Review of Asian views on foreign investment law.” in Foreign Investment and Dispute Resolution Law and Practice in Asia, edited by Vivienne Bath and Luke Nottage, 242-254. Routledge, 2011. UNCTAD. World Investment Report 2019. New York and Geneva: UNCTAD, 2019. Journals and periodicals Hanessian, Grant and Kabir Duggal. “The Final 2015 Indian Model BIT: Is This the Change the World Wishes to See?” ICSID Review 32, no. 1 (2017): 216-226. https://doi.org/10.1093/icsidreview/siw020. Rajan, Prabhash. “India and Bilateral Investment Treaties—A Changing Landscape.” ICSID Review - Foreign Investment Law Journal 29, no. 2 (2014): 419-450. https://doi.org/10.1093/icsidreview/sit052. Web sources Amindoni, Ayomi. “The Indian Mining Co. Sues Indonesia for $581 Million,” The Jakarta Post, November 18, 2015. Accessed 23 October 2016, http://www.thejakartapost.com/news/2015/11/18/indian-mining-co-sues-indonesia-581-million.html. Public Citizen. “Termination of Bilateral Investment Treaties Has Not Negatively Affected Countries’ Foreign Direct Investment Inflows.” Public Citizen, April 16, 2018. Accessed June 9, 2020, https://www.citizen.org/article/termination-of-bilateral-investment-treaties-has-not-negatively-affected-countries-foreign-direct-investment-inflows/. RSIS. “Indonesia’s Bilateral Investment Treaties: Modernizing for the 21 Century.” RSIS. Accessed June 10, 2020. https://www.rsis.edu.sg/rsis-publication/rsis/indonesias-bilateral-investment-treaties-modernising-for-the-21st-century/. UNCTAD. “Investment Policy Hub: Indonesia.” Accessed on June 9, 2020. https://investmentpolicy.unctad.org/international-investment-agreements/countries/97/indonesia, UNCTAD. “International Investment Agreements: India.” Accessed on June 9, 2020. https://investmentpolicy.unctad.org/international-investment-agreements/countries/96/india. UNCTAD. “Investor – State Dispute Settlement: Review of Developments in 2017.” UNCTAD IIA Issues Note, iss. 2 (June, 2018). Accessed June 9, 2020. https://unctad.org/en/PublicationsLibrary/diaepcbinf2018d2_en.pdf, accessed June 9, 2020. Others Gerard P. H. Kreijen, “The Termination of Bilateral Investment Protection Challenges for Investors.” Jakarta, 2014. India Department of Economic Affairs. “Model Text for the Indian Bilateral Investment Treaty 2016.” India DEA. Accessed June 9, 2020. http://www.dea.gov.in/sites/default/files/ModelBIT_Annex_0.pdf. Knörich, Jan and Axel Berger. “Friends or Foes? Interactions between Indonesia’s International Investment Agreements and National Investment Law.” German Development Institutes Studies (2014): Ranjan, Prabhash, Harsha Vardhana Singh, Kevin James, Ramandeep. “India’s Model Bilateral Investment Treaty: Is India Too Risk Averse?” Brookings India IMPACT Series No. 082018, August 2018.
Pejovic, Caslav and Pardede, Juliartha Nugrahaeny
"Revising Bilateral Investment Treaties as a New Tendency in Foreign Investment Law: India and Indonesia in the Focus,"
Indonesian Journal of International Law: Vol. 17
, Article 8.
Available at: https://scholarhub.ui.ac.id/ijil/vol17/iss2/8