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India’s Revised Model Bilateral Investment Treaty Explained

4 February 20251 min read
ECONOMYIndia’s RevisedModel BilateralInvestment TreatyExplained4 February 2025safalsetu.com

Why in the news

Finance Minister Nirmala Sitharaman announced a fresh model Bilateral Investment Treaty (BIT). With free trade agreements with the UK and the EU nearing conclusion, the existing model needs to become friendlier to investors.

Key facts

  • Trigger: adverse arbitration outcomes over retrospective taxation, notably the Vodafone and Cairn Energy cases, after assets were seized.
  • India terminated BITs with over 75 countries during 2016-2021.
  • The 2016 model BIT was essentially defensive, protecting the state from arbitration risk more than protecting investors.
  • The local remedies clause asked investors to go through domestic courts for five years before arbitration.

Gaps in the 2016 model

IssueProblemSuggested fix
Core protectionsMost favoured nation and fair and equitable treatment left outBring both principles back
Tax disputesOutside the treaty; government held wide discretionTransparent, even-handed procedure
Local remediesFive-year wait, slow courtsReconsider the waiting period
ScopeNarrow investment coverageInclude portfolio and indirect investments

Progress so far

  • India has signed BITs with the UAE, Brazil and Taiwan, and these depart from the model text.
  • Some shortened the period for exhausting local remedies; the UAE deal covers portfolio investments.
  • They show India can be flexible, hinting at what the new model may contain.

Way forward

  • Shift from a defensive stance to one that actively welcomes foreign capital.
  • Adopt global best practices with flexible terms and fair dispute resolution.
  • Cut government discretion in tax-related disputes.

Exam angle

  • Year of the current model BIT: 2016.
  • Terms to know: MFN, fair and equitable treatment, local remedies, retrospective taxation.
  • Recent BIT partners: UAE, Brazil, Taiwan.

Test yourself

1. How long did India's 2016 model BIT require investors to pursue local remedies before arbitration?

The local remedies clause made investors exhaust domestic remedies for five years.

2. Which two cases of retrospective taxation are cited as the reason for revising India's model BIT?

Adverse rulings in the Vodafone and Cairn Energy cases prompted the revision.

3. Which set of countries has India signed BITs with under the existing framework, according to the notes?

India has entered into BITs with the UAE, Brazil and Taiwan.