The recently concluded 14th Ministerial Conference of the WTO produced mixed results. While the multilateral system remains stuck on Appellate Body appointments, one of the most extensive pre-conference discussions focused on the Chinese-led Investment Facilitation for Development Agreement (IFDA). With 129 member states backing the IFDA, including countries like Bangladesh and several least developed countries (LDCs) from Africa, this has put India’s position as a key representative of the third world into question.
However, a thorough examination of India’s position reveals deeper concerns about the WTO within the ever-changing framework of global economic governance. In this article, I argue that India’s opposition to the IFDA is based not merely on apprehensions about China’s strategic influence, but also on other considerations founded on the grounds of jurisdiction, sovereign right to regulate and the procedure.
The Jurisdictional Argument & Potential Fragmentation of the International Trade Regime:
India’s primary objection to the IFDA emerges from a very pivotal question in the field of international law, challenging the jurisdiction and mandate of the WTO. In a rules-based transnational system, international organizations operate on a mandate-based framework. This mandate is primarily derived from the substantive provisions of their founding agreements and the consent of member states. Historically, the WTO’s mandate has centred on trade, specifically the regulation of trade in goods and services, as well as certain trade-related aspects of intellectual property and investment. While instruments such as the Agreement on Trade-Related Investment Measures (TRIMs) and the General Agreement on Trade in Services (GATS) incidentally touch upon investment, they do so only insofar as it is in relation with trade.
Given that the WTO’s mandate and primary focus are on trade, India maintains that the regulation of investment as an autonomous domain fall outside its negotiated competence. This position is grounded in the collapse of the “Singapore Issues,” which included investments as one of its four development agenda and were explicitly dropped from the Doha Developmental Agenda in 2004. The reintroduction of investment facilitation through the IFDA is thus viewed as lacking a legitimate mandate, raising serious concerns about the WTO’s overreach.
Another factor closely linked to the lack of mandate is the plurilateral character of the proposed agreement. Unlike multilateral agreements, which bind all WTO members on the basis of consensus, plurilateral agreements apply only to a subset of willing participants. While such arrangements are not unprecedented within the WTO framework, India views the IFDA as a symbolic representation of a broader trend towards fragmentation. The primary concern of New Delhi is the risk that plurilateralism brings to the system. India’s apprehension stems from creation of a two-tier system within the WTO, wherein economically powerful states effectively set the rules, leaving others in a position of reactive compliance. This seriously undermines the foundational principle of sovereign equality among the WTO members and erodes the consensus-based decision-making model that has historically been a salient feature of the WTO.
Right to Regulate
A further dimension of India’s opposition to the IDFA pertains to the preservation of regulatory autonomy. The IFDA, although framed as a facilitative instrument, introduces disciplines that may constrain domestic policymaking. The current bilateral system on which international investment law is based relies heavily on bilateral investment treaties (BITs) and dedicated chapters on investment in comprehensive economic partnership agreements (CEPA). This empowers developing countries such as India to specifically negotiate foreign investment policy in accordance with domestic requirements and national priorities.
However, under the IFDA’s plurilateral approach, India’s apprehension is grounded in obligations relating to non-discrimination, administrative review, and procedural standardisation, which over time may limit the flexibility required to implement industrial policy, promote local value addition, or regulate sensitive sectors in the public interest.
Further, India is also careful of the potential consequences that may arise from incorporating investment-related disciplines within the WTO framework. Although the IFDA does not formally include investor–state dispute settlement (ISDS) mechanisms, its provisions could nonetheless be invoked indirectly in arbitral proceedings under bilateral investment treaties (BITs).
Given India’s prior experience with investment treaty arbitration and the subsequent revisiting of its Model BIT in 2016 to ensure regulatory balance, this concern carries considerable weight. While at face value these provisions might seem benign and aimed at facilitation of flow of investments, their pro-investor interpretations might create problems by exposing India to international liability.
Another vital dimension of India’s critique pertains to the procedural legitimacy of the IFDA negotiations. It is quite commonly observed that the legitimacy of outcomes is intricately linked to the legitimacy of the processes that produce them. These negotiations were initiated through a Joint Statement Initiative (JSI) which remains controversial within the WTO system. India’s argument relies on the absence of an explicit mandate which contradicts the WTO’s decision-making framework, which is based on consensus.
Beyond these factors, India’s position can also be understood as a negotiation strategy. By resisting the incorporation of new issues such as investment facilitation into the WTO package, India seeks to preserve negotiating leverage in ongoing and future discussions. Accepting the IFDA could open a pandora’s box for the introduction of other areas, including digital trade and e-commerce, thereby shifting the balance of negotiations away from priorities of developing countries, such as agricultural subsidies.
It is important to note that India does not oppose investment facilitation in principle; rather, its criticism is related to the form, venue, and legal consequences of introducing non-trade disciplines at the WTO. India has, in fact, undertaken substantial domestic reforms aimed at improving the ease of doing business and attracting foreign investment. Its objection is more precisely directed at the form, forum, and legal implications of embedding such non-trade disciplines within the framework of WTO.
In summary, the refusal of India to sign the IFDA is a reflection of careful consideration of complex legal factors combined with prudence regarding institutional development and developmental policy. It underscores a broader tension within the contemporary multilateral trading system aiming to balance the ever-expansive rule-making to protect & promote investments, with preservation of regulatory policy space for host states.
