Desi Talk - page 20

20
May 8, 2015
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“Defining Partnership
of the 21st Century”:
E Visa Possibility For
Indian Citizens?
Continued from lastweek
While bilateral trade and invest-
ment between the United States and
India has quadrupled since 2006—
now at over $100 billion, with U.S.
investment in India at $28 billion—
the Obama administration and U.S.
businesses argue that the trade part-
nership has not reached its potential
and that India’s trade policies are, in
fact, sometimes discriminatory to
U.S. companies.
Washington has urged the Indian
government to break down business
barriers by changing its intellectual
property laws, especially as they
relate to pharmaceuticals; address
inconsistent tax treatment; require-
ments that companies buy local con-
tent, such as in the telecommunica-
tions industry and renewable energy
sector; and limitations on FDIs.
While the Indian government has
already undertaken a number of poli-
cy changes to begin addressing the
trade and investment partnership
with the U.S., New Delhi is reluctant
to the idea of investor-state arbitra-
tion and has been pressing
Washington to give its local courts the
jurisdiction over the cases that may
arise.
The reason for India’s reluctance to
the Investor-State arbitration
emanates from its past experience.
India has signed over 82 BITs, of
which 72 are in force.
Among the countries with which
India has concluded BITs are
Australia, Belgium, Cyprus, France,
Germany, Indo sia, Korea, Kuwait,
Malaysia, Mauritius, Netherlands,
Qatar, Russia, Switzerland, and the
United Kingdom.
India has recently seen a surge of
investment arbitration cases brought
against it because of the investor-
state arbitration clause in the existing
BITs.
Even though India appears to have
been a party to few unreported
investment arbitration cases, India
did not experience its first publicized
loss in an investor–state arbitration
until White Industries Australia Ltd. v.
India in November 2011.
The arbitration tribunal inWhite
Industries held in favor of an
Australian mining company and
awarded it US$5 million in damages
as the company had suffered long
delays in the Indian courts enforcing
a commercial arbitral award against
an Indian state-owned company.
Additionally, the invalidation of 2G
license auctions that were conducted
in 2008 by the Indian Supreme Court
in 2012 led to additional claims
against the Indian government under
the already existing BITs.
As a result, the Indian government
has expressed strong dissatisfaction
with the investor-state dispute resolu-
tion provisions of its BITs.
There are differences between the
United States and India in the initial
bargaining positions regarding BIT,
but few show any philosophical dif-
ference that cannot be overcome. For
what President Obama calls as one of
the “defining partnerships of the 21st
century,” letting the economic side of
things drift is unacceptable. Political
leaders on both sides will need to
push for an expansive vision of the
possible cooperation between the
two countries.
By midcentury, the United States
and India are forecast to be the sec-
ond- and third-largest economies in
the world.
Now is the time for these two eco-
nomic giants to prioritize their bilat-
eral economic relationship in order to
rise to the occasion.
While no doubt such a treaty
would provide protection to the
investments and open new avenues
of investment for both countries, it
would bestow immigration benefits
(such as E visa) to its nationals, which
in turn will further benefit the econo-
my of both countries.
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