State Courts and State Responsibility: A Response to Prof. Prabhash Ranjan's " Can BIT Claims Be Made Against India For The Actions Of The INdian Judiciary ?"

Abstract

This piece is a response to an article that appeared in the first issue of NLUJ law review by Dr. Prabhash Ranjan in his paper entitled “Can BIT Claims Be Made against India for the Actions of the Indian Judiciary? The author attempts to analyse the crucial question of the role of national courts in complying with international norms in the backdrop of the Supreme Court of India’s order cancelling the 2G spectrum licenses. This piece discusses the inherent asymmetry in Investment Treaty Arbitration, which grants investors rights but not obligations, while imposing upon the states obligations unaccompanied by rights; the need for balancing the competing interests taking into consideration state sovereignty which signify the ability of states to regulate for the benefit of public welfare. It is discussed that a potential review by a tribunal cannot merely decide on the basis of a single court decision, rather they must see whether a reasonable opportunity of getting their loss redressed, is foreclosed. Lastly, the author explores the question of arbitrability in cases of public corruption involved in the investments and concludes that the claims, if at all possible, would not be successful before an ITA tribunal