Can BIT Claims Be Made Against India For The Actions Of The Indian Judiciary?

Abstract

Both international law principles relating to attribution and the BIT jurisprudence amply demonstrates that state can be held liable internationally for the actions of its judiciary. In India's case, the two ITA cases clearly show how BIT claims have been brought against India for the actions of the judiciary and, in fact, in one case, the claim was successful (White Industries v. India). Thus, in this light, one can safely conclude that the foreign telecom companies, in principle, can surely bring a BIT dispute against India for the cancellation of the telecom licenses even if these licenses have not been cancelled by the executive but by the judiciary. Whether the foreign companies will succeed in such BIT claims is a different matter altogether.