Indian courts and bilateral investment treaty arbitration

Abstract

ABSTRACT Indian courts have had limited opportunities to deal with bilateral investment treaty (BIT) arbitrations. In this paper we examine the interactions between BIT arbitration and Indian courts through a study of three domestic court cases arising in context of anti-arbitration injunctions in BIT arbitration. These three cases are Port of Kolkata v LDA, India v Vodafone, and India v Khaitan. Through these three cases, for the first time, Indian courts have thrown light on issues such as jurisdiction of domestic courts on matters pertaining to BIT arbitration, the applicability of the Indian Arbitration and Conciliation Act, 1996 (‘A&C Act’) to BIT arbitration and questions surrounding “abuse of process” by foreign investors. Two out of three cases held that the A&C Act does not apply to BIT arbitration. On “abuse of process”, the courts held that these questions should be addressed by BIT arbitration tribunals and not by domestic courts.