Enforcing Investor Rights Against The Indian Government: The Antrix-Devas Saga Continues

1. Introduction

Investment treaty arbitration has become a popular method for enforcing investor rights against a government which has, vide its regulatory control, denigrated foreign investment to the extent protected under the relevant treaties. In India, this trend was spearheaded by White Industries; this investment treaty dispute concerned the Indian judiciary's reticence in enforcing a commercial arbitration award in the foreign investor's favour. This dispute also resulted in a creative interpretation of the Most Favoured Nation ("MFN") clause in the India-Australian Bilateral Investment Treaty ("BIT"), by applying it to procedural guarantees extended by the State in its BITs with other nations. More recently, Vodafone, has commenced the procedure for dispute resolution under the India-Netherlands BIT, claiming a violation of the Fair and Equitable Treatment ("FET") clause, alongside making a claim for expropriation. This dispute concerned the Parliament's