FDI In India, Sovereignty And International Arbitration

In the past, India rejected the ratification of an international arbitration clause in its free trade agreement with the European Union. Some considered it as objectionable yet we believe that such a precaution is a must in the current scenario of uncertainties and global economic slowdowns.

Those who opposed such a move on the part of India believe that it is not an encouraging sign for foreign investments in India. They believe that foreign investors will have a fear factor while doing business with India.

The Indian government has recently released the consolidated FDI policy of India 2012. It is a combination of liberalisation, automation and government regulations. So the FDI environment of India is clear and unambiguous in nature.

The recent Vodafone tax case has raised many crucial questions regarding FDI in India, taxation regime of India, governmental policies, arbitration mandates, etc. Even Vodafone has served a notice upon Indian government declaring its intentions to start an international arbitration if retrospective tax liability is imposed upon it.

India has a tendency to take action only on eleventh hour when things are already in bad shape. This is the reason why 2G scams, Vodafone tax controversy, inadequate technology statues, etc are haunting Indian government now. For some strange reason India has always preferred a knee jerk reaction instead of a well defines policy environment with transparency and accountability.

In the present circumstances refusing to approve an arbitration clause in various free trade agreements and FDI treaties is natural. India cannot afford the agitation of various disputes at international level till it makes its own turf clear and strong.

Dispute resolution of matters pertaining to national issues and foreign relations is a sovereign function that India cannot allow to be taken away. If arbitration disputes are directly taken to international platforms/institutions this would undermine the very sovereignty of India. This fact must be clearly mentioned in the FDI policies of India and other such trade agreements.

However, in order to do so, India must make its dispute resolution machinery effective and litigant friendly. Some believe that the present dispute resolution mechanisms of India, whether courts or arbitration, are in a very poor state of condition. Technological innovations like e-courts and online dispute resolution (ODR) are seldom used in India. They must be frequently used by India.

The arbitration law of India is outdated and needs urgent amendment. If India is really serious about FDI it must improve the business doing environment and effective dispute resolution policy. But allowing disputes to be taken to international institutions is the last option that India must exercise even if it means loosing the valuable FDI.

In the ultimate analysis, if there is a choice between sovereignty and FDI/FTA, all countries would choose the former. So we have to invent a formula that does not touch either. This can be done by improving the decaying legal, arbitration and judicial system of India rather than allowing the matters to be taken out of India for settlement.