THE SHAKY APPROACH OF THE INDIAN JUDICIARY IN ENFORCING BILATERAL INVESTMENT TREATY AWARDS

Abstract

With the increase in transnational transactions, the nation-states have gained foreign investments which assisted in the growth of the national economy. The investment treaties became popular to facilitate the investment mechanism between a foreign investor and the host state. The investment regime faced many twists and turns but still proved to stand in the test of time. The Bilateral Treaties are a popular instrument in which the parties opt for making investments in foreign jurisdictions. It is needless to say that the complex regime gave rise to a range of disputes and issues. The BIT itself provides for a dispute resolution mechanism in the form of investment arbitration. The significance of arbitration resides in the legality of enforcement of its award. The present Indian policies and judicial approach are uncertain and indeterminate with respect to India’s position on the enforcement of investment arbitration awards. There has been no precision or coherence on the policy front on award enforcement. The Indian judiciary has further added fuel to the vague realm by giving contradictory pronouncements. The oscillating approach of the judiciary from pro-arbitration to anti-arbitration creates problems for foreign investors and can impact the economy of India. The researchers have ramified the article into chapters and sub-chapters. Initially, the paper set forth the evolution of the Bilateral Investment Treaties Regime of India. The second part of the paper enumerates the existing Indian policies and measures the adequacy of the Indian regulatory framework to deal with the enforcement of investment arbitral awards. Next comes the major part of the research which is analytical in nature and exhibits the oscillating approach of the Indian judiciary on the concerned issue. In this part, the researcher attempts to cull out lacunas in the investment award enforcement regime