India and Investor-State Dispute Settlement: Affronting Sovereignty or Indicting Capriciousness?

Prabhash Ranjan explores the two competing narratives of investor-state dispute settlement (ISDS) and focuses on the six ISDS cases India lost. On the one hand, ISDS is chastised for affronting the State’s sovereign regulatory power - the Philip Morris narrative. On the other hand, ISDS allows investors to hold States accountable for abuse of public power - the Yukos narrative. This book argues that India’s ISDS story resembles the Yukos narrative.

With a focus on six case studies, this book examines the reasons that led to foreign investors suing India and the following developments. These ISDS claims are divided into four categories: a case arising from judicial actions, claims brought because of the cancellation of a contract to lease spectrum, conflicts resulting from the imposition of retroactive taxes, and disputes arising from the actions of sub-national governments. Based on India’s recent treaty practice, the book also contends that India is de-legalizing and de-judicializing international investment law. By telling India’s ISDS story, the book drives home the point that rectifying the ISDS system’s flaws requires both narratives’ centrality. Excessive focus on the Philip Morris narrative will replace the existing imbalances with a new one where the scale tilts towards the States to the detriment of foreign investment.

This is a useful reference for scholars and practitioners interested in ISDS and its implications for India.

Prabhash Ranjan is Associate Professor at the Faculty of Legal Studies, South Asian University, New Delhi. He holds a PhD from King’s College London and teaches and publishes in the area of international investment law and international trade law.