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Brazil India Investment Cooperation and Facilitation Treaty (2020)

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During a recent visit to India (24th – 27th January) as a chief guest of the Republic Day celebration, Brazilian President Jair Messias Bolsonaro sketched an ambitious plan to revitalisation their faltering economy. This new strategic partnership will expand cooperation in key sectors of the economy such as oil, gas, and mining, while it was setting the target of USD 15 billion in bilateral trade by 2022. While approaching to WTO against India for extending support to her sugarcane farmers, Brazil penned investment cooperation and facilitation treaty. This is Brazil’s 10thand India’s 4thbilateral investment agreement since both nations had adopted their Model Bilateral Investment Treaty. Previously, India has managed to conclude bilateral investment treaties with Belarus, Kyrgyzstan, and Cambodia after scrapping down all 83 existing bilateral investment treaties. The object and purpose of this short write-upare to critically analyse and compare the new Brazil-India Cooperation and Facilitation Treaty (Brazil-India BIT) with the Model BITs of India and Brazil. It will be discussed who deviates from Model BIT and to what extent to sign the investment agreement. Moreover, the author will evaluate whether both countries have compromised their interest to strike a deal and who wins the deal or to what extent.

The Definition of Investment

Definition of investment is one of the essential elements in any investment agreement as this is the first thing a disputant has to establish before an investment tribunal to avail the protection. Brazil-IndiaBIT under Article 2.4 incorporates the meaning of investment. Here we see that enterprise-based definition is adopted where an enterprise is taken together with all of its assets. Both Brazil and Indian Model BITs have adopted the same enterprise-based definition approach. The BIT definition of investment is coupled with some other characteristic such as the commitment of capital, objective of establishing a lasting interest, expectation of gain or profit, and the risk assumption. In this, the BIT commensurate with Indian Model BIT as Brazil BIT lacks these elements in the definition of investment. A slight difference remains with the Indian Model BIT as the BIT does not require the “significance for the development of the host-state” characteristic in investment. Prof. Ranjan rightly pointed out that the requirement “investment should be significant for the development of the host-state” is a subjective requirement which is very much challenging for the foreign investor to prove the same before an investment tribunal.

Novelty in Expropriation Clause

A novelty of the new Brazil-India BIT is its expropriation clause which completely excludes indirect expropriation from the scope and purview. Article 6 only talks out “Direct expropriation” as the heading of the article proposes. Article 6.3 incorporates a provision which clearly states that the treaty only covers direct expropriation. The direct expropriation takes place in the time of nationalisation or when expropriation is made directly through formal transfer of title or when a downright seizure is made. Thus Brazil-India BIT does not cover indirect expropriation of investment. After a thorough reading of both Model BIT, it is observed that Brazilian Model BIT does not have any provision related to indirect expropriation while Indian Model BIT covers the same under Article 5.3. Thus, this can well be said that this novel idea of excluding indirect expropriation, Brazil wins while India deviated its Model BIT. As this rule allows investors to bring indirect expropriation claims on imperceptible grounds. Brazil has been critical to indirect expropriation for some time. According to the Brazilian approach, this provision allows foreign investors to make abusive claims and shrink regulatory spaces of the host-state, which helps host-state to protect public interest such as public health, environment, public security etc. Since direct expropriation of foreign investment is very much rare in the modern economic affair, it is unexpected that the Indian side departed from its earlier practice. Even recently concluded Indian BIT with Belarus provides rules of indirect expropriation under article 5.3A thorough reading will reveal that not only those BITs provide for protection from both ends but also laid down formulae of determining indirect expropriation which could be a great guide for investment tribunals. Host-states regulatory powers which emanate directly from its sovereignty puts a prodigious test for the investors. The regulatory measures are taken in public interest frequently creates hardships and might upset investment adversely. Although there is a possibility of abusing power under the blanket of indirect expropriation, the entire removal of the system of indirect expropriation is not a welcome step. In the words of professor Ranjan, “leaving indirect expropriation outside the scope of the BIT creates a yawning gap in the protection of foreign investment.

Prevention and Settlement of Dispute Clause – A New Horizon

Settlement of dispute is a vital portion of any investment agreement. It is observed that Brazil-India BIT used the phrase “dispute prevention and settlement” instead of the word dispute settlement only. Settlement of dispute comes under Part IV Institutional Governance, Dispute Prevention and Settlement. This highlights that both countries emphasise on the prevention of disputes resorting to the principle “prevention is better than cure”. Ostensible novelty is established in this BIT as Brazil has been very critical to the Investor-State Dispute Settlement System (ISDS) which gives an investor a right to approach an investment tribunal directly against a State. There is no provision of ISDS in this new Brazil-India BIT. Article 13 calls for the creation of the Joint Committee for the administration of this Treaty comprising of government representatives of  both parties. This Joint Committee shall oversee the implementation and execution of the treaty, coordinate and facilitate, and resolve the dispute amicably between the parties. In pursuant to Article 14 Each party has to establish National Focal Point or Ombudsman who will be responsible for following recommendations of Joint Committee and consult with other party’s Ombudsman. Concisely, Ombudsman shall work closely with the other party’s Ombudsman, Joint Committee, and relevant government authorities at the state and local level to address differences and helping in preventing disputes. A unique dispute prevention mechanism is provided under Article 18. Under this article, if a party considers that a specific measure adopted by the other party constitutes a breach of this treaty, the party may initiate dispute prevention procedure within the Joint Committee. If the Joint Committee fails to resolve the dispute within a specified time of two months, the party may submit the dispute to the arbitration in according to article 19. Article 19 envisages State to State Dispute Settlement (SSDS) mechanism. This article says when dispute prevention mechanism fails to address and resolve the differences between parties, either party may refer the dispute to arbitration tribunal under this article. Article 19.2 says in explicit language that the purpose of the arbitration is to decide on the interpretation of the treaty or the observance of the terms of the treaty by a party. Furthermore, it spells out that the tribunal does not have any power to award compensation. Indian Model BIT provides both ISDS and SSDS mechanisms while Brazilian Model BIT excludes ISDS procedure, instead they devise SSDS system of dispute settlement. Thus, it is more than clear that India compromised its stand and agreed to adopt the SSDS system put forward by Brazil. However, in the absence of ISDS, the foreign investor has to depend entirely upon the home-state. If home-state does not wish to protect the interest of the investor, the investor will have no remedy available to the foreign investor under general international law.

Non Discrimination Clause

Non-discriminatory clauses in BIT protects investors from losses which may incur due to war or other armed conflicts, civil strife, national emergency etc. If any investment is adversely affected due to any above-stated reasons the state has to compensate the investor. The BIT stipulates the ways of compensation. Typically, it includes restitution, indemnification, and other forms of compensations. Article 7 of the Brazil-India BIT incorporates such rule. It says, if investment suffers losses in the territory of other party due to war or other armed conflicts, revolution, state of emergency, civil strife or any other similar events, shall enjoy restitution, indemnification, or other forms of compensations. Moreover, the clause attached with MFN clause. So, the adversely affected investor has the option to avail the most favourable treatment under the MFN clause, which is awarded to a third-party than the treatment the host-state accords to its own investors. Both Model BITs have featured this non-discrimination clause. The Indian Model BIT only includes National Treatment clause not MFN clause whereas Brazilian Model BIT incorporates MFN clause. Thus, once again, India compromised its stand to Brazil and agreed to embrace the MFN clause to article 7 of Brazil-India BIT. However, one may find this kind of attachment of the MFN clause is standard protocol and nothing new to the investment lawyers.

Commonalities with Indian Model BIT

Although most of the BITs do embrace MFN clause as a standard procedure, the Brazil-India BIT does not include the same. Brazil conceded not to include MFN clause although its Model BIT provides for the same under article 6. There is no provision of the MFN clause in the Indian Model BIT. Taxation related regulatory measures have been put outside the purview of the treaty under article 20 of Brazil-India BIT. The same is offered by Indian Model BIT under article 2.4 with a minor variance that host-state’s decision on the impugned measure is taxation related, is final and non-justiciable. Whereas article 20 of the Brazil-India BIT does not use the word non-justiciable as such. Both Brazil-India BIT and Indian Model BIT have adopted General Exceptions clause under articles 23.1 and article 33.1 respectively. One may find that article 23.1 of the Brazil-India BIT is a reproduction of article 33.1 of Indian Model BIT. In terms of Security Exceptions clause, both Brazil-India BIT and Indian Model BIT have encompassed under article 24 and article 33 respectively. Again the Security Exceptions clause of Brazilian-Indian BIT is influenced from Indian Model BIT. Article 24 is almost a reproduction of article 33 of the Indian Model BIT with an insignificant alteration in article 24.3. 

Conclusion

After analysing Brazil-India BITs with Model BITs, the present author opines that newly concluded BITs between two nations rests mostly on Brazilian Model BIT. Although two countries have compromised on certain aspects. As it does contain SSDS system excluding the ISDS system of dispute settlement and the indirect expropriation clause.  We witness the Brazil-India BIT is based on the principle of dispute prevention rather than the prevalent notion of dispute settlement. It is designed in such a way that it will be productive in preventing disputes more effectively. This unique dispute prevention tactic needs appreciation. The modern economic affairs hardly witness nationalisation or the direct takeover of foreign investment. As a result, in the absence of rules of indirect expropriation, it could well be expected that a certain degree of foreign investment protection would be weakened.  After White Industries Arbitration case, asluicegate was opened for foreign investors’ claims which put at risk Indian government. Recently, India had terminated a close to 60 investment agreements which were based on the investor-centric approach of 2003 Indian Model BIT. In 2016, India published its new model BIT and started negotiation with other states, which is state-centric. After thorough analysing of the provisions, one can certainly reach to the conclusion that Indian Model BIT2015 gives precedence to host-state’s right to regulate over investment protection. This new Brazil-India BIT is even more placed on host-state’s sovereign right to regulate. As Indian Model BIT has been compromised most of the time while inking the Brazil-India BIT, the question remains to see in future BIT negotiations; whether India sticks to its own Model BIT or pay heed to the terms advances by the counterparts; hesitatingly or readily.

Swargodeep Sarkar studied Law at the University of Calcutta & holds a Master in international law & organisations from Tamil Nadu Dr. Ambedkar Law University, Chennai, India. Currently, he is a PhD candidate in international law at the Indian Institution of Technology, Kharagpur. His research area includes.public international law, international investment law, peaceful settlement of international dispute.

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Bangladesh’s Graduation: A Ray of Hope for India’s Garment Industry?

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Authors: Ms. Prerana Manral and Mr. Shreyansh Singh*

A report was released by the World Trade Organization (WTO) on May 8th highlighting the implications of graduation of Least Developed Countries (LDCs) on their trade participation. By virtue of their status as LDCs, these countries enjoy access to international support measures such as development financing, preferential market access, technical assistance etc. WTO also obliges LDCs with certain carve outs such as Special and Differential Treatment (S&DT) to increase their participation in global trade.  The LDCs are graduated to developing country status if they meet the threshold levels for at least two of the three indicators i.e. Gross National Income (GNI), Human Assets Index (HAI) and Economic Vulnerability Index (EVI) for two consecutive triennial reviews. Interestingly, in 2018 Bangladesh became the first country to meet the thresholds for all the three indicators and if it meets these thresholds again for the second triennial review in 2021, it will be eligible for graduation in 2024.

In such a scenario, Bangladesh will lose some of the benefits provided to LDCs by developing and developed countries like the preferential market access which presently accords Bangladesh a competitive edge over Indian products. One of the key labor-intensive sectors which contributes significantly to the exports of both Bangladesh and India is garments industry. In 2009, both the countries almost had an equivalent share in the world market, however in 2018 India was left far behind Bangladesh. India’s total garment exports stood at 21 billion USD whereas Bangladesh’s exports were at 40 billion USD in 2018. 

Bangladesh’s garment sector, due to its LDC status, currently enjoys a duty-free access to markets of Europe and other developed countries. Specifically in EU markets, goods from Bangladesh are covered under “Everything But Arms” (EBA) preferential arrangement which provides zero percent duty on all the products except arms and ammunition. On the other hand, India loses out due to 9% average tariff on garments under the Standard GSP scheme of EU. Further, under the SAFTA and APTA Agreements, India also provides similar duty-free market access to LDCs which along with the removal of quantitative restrictions has exponentially increased Bangladesh’s garments exports to India leading to a tough time for the domestic industry even in the internal market.

Source: Authors’ calculation based on data available on World Integrated Trade Solution

The major markets for India and Bangladesh garment exports are the EU, Australia, Canada and Japan. Trade estimates of garment products clearly show that India’s export in terms of value is significantly less than that of Bangladesh. Since 2010, India’s total share of exports grew by 9.4% whereas Bangladesh’s exports skyrocketed by 141% in these markets. The major reasons behind Bangladesh’s exemplary export performance are tariff exemptions and lower wage labor market which provides impetus to narrowly beat its competitors in the international market. The analysis done in the report reveals that 70% of Bangladesh’s overall export is covered under LDC-specific preferences.

At this juncture a possible graduation of Bangladesh will lead to termination of such preferential access granted exclusively to LDCs which may provide an opportunity for Indian exporters to grab a larger share. However, to maximize the gains arising from this development India needs to prepare a robust action-plan. Firstly, low cost inputs such as cheap power, land and raw materials will have far-reaching effects in enhancing the export competitiveness. Secondly, India should focus on mass scale production of garments in order to achieve economies of scale to bring down its cost of production. Presently, the production is limited majorly to small-scale enterprises which lack capital intensive technology. This in turn negatively affects the quality and time of production which are crucial factors in tapping the domestic and international markets. The improvement in these parameters would help Indian exporters to move up the value chain in terms of creating brand value for its superior quality products. Another overdue policy action could be cutting the import duties on high-quality machinery required for better production. In addition to this, a fiscal stimulus is required to boost the ecosystem in wake of Covid-19 pandemic.

Lastly, to offset the preferential access enjoyed by its competitors such as Vietnam, Bangladesh etc. India should identify its partners and strategically negotiate FTAs for lower tariffs and Non-Tariff Measures (NTMs) to obtain better market access for Indian exports. Needless to mention, India will only be able to reap the benefits arising from Bangladesh’s graduation (due in 2024) if it sows the right seeds today. Effectuating such policies especially at a time when corporate taxes are slashed to match that of India’s competitors along will definitely send a positive signal for investment in the sector from the top global garment companies.  

*Authors are Research Fellows at Centre for WTO Studies, Indian Institute for Foreign Trade. Views expressed are personal.

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Post-Pandemic Economies and Environment

Dr.Abid Rashid Gill

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The cleaner air in cities, the burgeoning biodiversity and dramatic shift to less pollution-intensive lifestyle across the globe indicate the scope of the environmental improvement that can be achieved in just days. This is what we need to adhere to navigate the current pandemics:COVID-19 and environmental degradation. The environmental issues as we know do not seem to wait for a more convenient time, we therefore must deal it and Covid-19 pandemic concurrently. It is a very fatal disease and has incited urgent response all over the world. The governments, businesses and industries have been forced to deal with the pandemic in an unprecedented way.

According to the experts, this pandemic has provided us with the opportunities to deal with other crises also. We can take a transnational leap towards a sustainable society that produce minimum wastes and emissions. How we deal with current pandemic will also set our environmental trajectory for the centuries to come. The changes in our behaviour that we are experiencing nowadays and some of which may instilus permanently have a far-reaching impact on the environment. Our consumption and travel patron are more responsible: driving less car, attending online meetings rather than taking flights. Equally, it indicates that considerable dent on emissions and wastes products can be made without disturbing too much economic growth.

However, according to International Renewable News Agency (IRENA), for the long-run substantial reduction in the emissions of the toxins, huge and lasting changes are needed in the way how energy is produced and consumed. Though China and India two major growing economies, observed 25% and 30% reduction respectively during the months of lockdown. However, a shift towards low-emission society cannot be accomplished only via individual choices instead it involves reimagining the ways our urbane centres are built and organised, how roads are laid out so that moving without cars become easier, how provisions for walking, cycling and public transport is mad. There is a need for complete overhauling theway we grow, manufacture, trade, consumes and the way we travel.

Cities of Western Europe have been leading this transition by introducing innovative infrastructure projects: Milan has allocated 35 Km street for pedestrians and cyclists; Brussels has created 40km of a new path for cyclists and France has subsided cycling. Also, the Mayor of London started taking measures to build a car and buses free streets and bridges. Similarly, many cities are working on the circular economy where wastes are minimized through reuse and recycling. Following the footsteps of these cities, Pakistan also needs to devise pro-environmental urbane policies and mobility models.

Many studies such asYaron Ogen, 220 and  Dario Caro, 220 indicate a strong link between COVID-19 death rate and an increase in emissions. Especially in North Italy and Spain, the high death rate from COVID-19 is seen to be associated with high air pollution in cities. Curtailing the pollution, therefore, would reduce general health burden and prevent any future pandemic may not prove to be so lethal. It has been learnt from the pandemic that early actions to contain the virus were more effective than trying to deter when the virus has spread. The same is also true for the environmental issues as Prof. Stern of Brentford claimed in 2006 that “countries needed to spend 1% of their GDP to stop greenhouse gases rising to dangerous levels. Failure to do this would lead to damage costing much more, the report warned – at least 5% and perhaps more than 20% of global GDP”.

Eventually, it is time for governments to forge with the private sectors to produce a sustainable economy. After this pandemic is over, the businesses, the industry, and individuals would plead to governments for state support. The governments should have an agenda of a sustainable economy while pouring money into the economy as aid packages. Governments should use this opportunity and must take a long view to utilize the stimulus packages. To an extent, the impact of COVID-19 on the environment is the functions of a kind of fiscal stimulus will be adopted in post-pandemic. Ideally, we should avoid a post-2008-09 financial crisis when fiscal measures of China government boosted the emissions by 6% (World Bank,2020). Rather, a more successful model of South Korea should be borrowed where stimulus package of 2008 included investment in natural conversation, energy efficiency, renewable energies, and sustainable transportations.

The COVID-19 virus is a global issue that requires a global response asall states are sharing data, experiences, equipment, and resources to deal with this pandemic. This same spirit of international collaboration is needed to produce the viable solution of the environmental issues. An inclusive global programme collaborated by rich and poor nations that ensures sustainable production can ensure low-emissions economies across the globe. The post-pandemic economies should be navigated in a way that protects people and planet and avoids any ecological destruction that leads to viral diseases. This pandemic can be taken as a mandate to build a new world from its broken parts.

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Long lockdowns and the status of Indian MSMEs

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Recently, when the Government of India decided to classify institutions as Micro, Small, and Medium Enterprises (MSMEs) they were trying to set up an incentive structure to usher a new era of growth. The incentives announced are in the form of attractive cheap loans, fewer compliance standards, tax benefits, and host of other freebies. The intended scheme wanted to keep growing — from Micro to Small and Small to Medium, and the support system and put the nation on a path of self-sufficiency .

Change of classification criteria

In fact, the businesses are  classified as Micro, Small, or Medium depending on the kind of investments they were making in plant and machinery and  if we made investments of up to 5 Crore, then we are as a Small enterprise. But what happens when business is booming and there’s an incentive for us  to invest and expand. Well, without government intervention, we’d have lapped up this opportunity no questions asked. But now, we have to consider the downside. Because, as our transition from being Small to Medium, we’ll forego a few benefits. Benefits that  might not want to cede. Here likes the dilemma because when we  try and deceive the government into thinking we  are a Small enterprise when in fact we are not and we will  have to do is to keep making the investments we  need, but figure out ways to hide the investments on our  accounting books. That means the government will now have to spend additional resources in physically verifying your claims. In effect, the incentives that were designed to help MSMEs grow and become self-sufficient have now turned “perverse”. A move that was meant to promote investment and foster growth is now yielding terrible unintended consequences stifling all progress.

Scheme of the Government

So they began working on a proposal to change the classification criteria. They figured that total revenues would be a good metric since claims regarding revenue can easily be verified with the GST Sales data filed at the Goods and Service Tax portal. More importantly, entrepreneurs won’t have to worry about making new investments since the benefits are no longer tied to this metric. But the industry body representing MSEMs is not happy with this development. They lobbied and urged the government to keep the classification criteria intact but  when the government finally charged ahead and introduced turnover as an additional criterion. They even expanded the investment limit to ensure MSMEs don’t graduate out of benefits too soon. However, MSMEs in the service sector (IT and stuff) will also be classified along the same lines as their manufacturing counterparts. So no step-motherly treatment for the people in the service industry either. Besides the classification, the government also wants to get the big guns interested in the space. They want Venture Capitalists to walk in and buy ownership in promising upstarts. The plan is simple. Put together a mother fund with 10,000 crores from the government. And then disburse the funds from the mother entity to smaller daughter funds in a piecemeal fashion and try and get other investors on-board these smaller funds. If all goes well, the 10,000 crores from the government should attract an additional 40,000 crores from outside investors (PE/VCs) and this should give MSMEs some much-needed funding support. They are calling it the Fund of Funds.

However, in the present status of pandemic banks don’t want to offer another lifeline by extending new loans considering their own precarious situation. And they most certainly cannot contain the problem; since we are likely to see a spike in defaults owing to the fact that most MSMEs have shut shop completely since the lockdown. And if MSMEs can’t restart operations and fail en masse, we will have a systemic problem on our hands. So a government intervention was inevitable. And the finance minister finally announced 3 lakh crore worth of collateral—free loans for businesses, including MSMEs in a bid to plug the funding gap. If we are in a business with a loan burden on your hands, banks will now extend new loans of up to 20% of the total loan outstanding so that we  can restart operations. Now, we’ll have 4 years to repay this loan. Repayment obligations won’t kick in until the end of the first year. The government will stand as our guarantor in case we  default and they will compensate the banks in full interest and principal. So technically, banks should be more willing to lend to these institutions now.

Growing importance of agriculture

 Around 51 lakh people migrated to agriculture last year and this should be seen positively. In fact, we should actively pursue this endeavour and focus on making farming economically viable. Indian Agriculture, on an aggregate level,  has been unprofitable for a good while now. Monsoons are erratic. Irrigation infrastructure still needs work. Warehousing and storage problems still persist. The middlemen skim most of the profit and many farmers work with land parcels so tiny that they can almost never leverage benefits of scale. Meaning we have a small proportion of landowners who run an extremely profitable enterprise while a good chunk of the agrarian population  still live below the poverty line. The point is — there’s been very little incentive for people to continue and work the farmland. And as a consequence, many people migrated from rural hinterlands to urban centres en masse.

But now in the pandemic and long lockdown the  migration patterns have reversed.  There’s now more incentive for India’s labour population to return to agriculture. It’s become prosperous again. First, it is likely that employment did not actually increase in agriculture, but the sector merely absorbed the excess labour as it had no other place to go to. Farmers did not actually call out for more labour. But, family labour landed up in farms when they had no other place to go to. The real estate and construction sector, which is usually a provider of employment to low-skilled farm labourers who try to move out of the labour surplus farmlands, shed 4.6 million jobs between January-April 2018 and January-April 2019. This failure of the construction industry to absorb farm surplus labour is, possibly, the biggest reason why there is an increase in employment under agriculture. A family farm always has scope to absorb some unpaid labour although such additions may not increase any production or profit. There is always an extra patch of the farms to tend to or the need to take the cattle to graze a little farther. Farm work can be spread thinly over available labour and keep everyone “employed” when there is no alternate work available to them.And right now, with the lockdown in place, we are seeing it happen again. People are moving back to agriculture en masse because they have nowhere else to go. The only difference—it’s happening at a scale that almost seems unreal. This migration also has some very real policy implications.

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