Senior Advocate Harish Salve QC on the issue of Bilateral Investment Treaties has stated that, “The decision making in India has shifted from civil servants to Courts or Tribunals. In India if we make promises under the BITs then there is no one to uphold those promises. When UK BIT came up for renewal. UK said what about the dispute resolution clause, but India’s stand was firm that no one can question India’s sovereignty”.

Senior Advocate Harish Salve QC haa said that, “There has been cross fertilization of principles of arbitration rather than other way because when the Commercial Court rules were being drafted by Delhi High Court, simply use of  the SIAC Arbitration Rules for making Commercial Court Rules which was accepted by High Court. So there has been cross-fertilization of arbitration rules into the field of litigation”

Harish Salve QC while speaking at a SIAC’s India Webinar further added that, “While working with the Government officials in the BIT arbitration case one has to go very easy on the officials and avoid being harsh to such officials”. He further stated that, “When you work with Government, one realizes inherent difficulties, challenges and stress. Having worked with different government like of US, UK in India, I have realized that after peeling few layers, every bureaucracy is same be it UK, US or India. I realized inherent issues and difficulties in functioning of the Governments”.

On the issue of Bilateral Investment Treaties, Harish Salve said that, “The objective of treaty is to isolate foreign investors from pressures that come up in functioning of countries like India”.

He added that, “The decision making in India has shifted from civil servants to Courts or Tribunals. In India if we make promises under the BITs then there is no one to uphold those promises. When UK BIT came up for renewal. UK said what about the dispute resolution clause, but India’s stand was firm that no one can question India’s sovereignty”.

“Thus there is aspirational mismatch, civil servants have to accept that there has to be someone to tell them what you are doing it is not right otherwise god help the investors”.

Harish Salve stated that, “Our ecosystem is very questionable. We have to do something which tells investors that they come here with trust. Our PM’s Office has built image of India with huge prospects but some actions are needed to be taken on fiscal side”.

One of the questions which came up during the webinar pertaining to How the loopholes in the Investment Arbitration regime can be fixed?

To this Senior Advocate Harish Salve stated that, “It is will be never be filled. Indian Arbitration law has always tried to be pro-arbitration, amendments have been made to reduce the interference of the courts in arbitration proceedings. Reality is when we see on macro-basis, single largest arbitration cases are against Government. They are worst in arbitrations. There ideology is to block the arbitrations because they believe Indian Courts only understand them rather than Arbitral Tribunal. This ideology has been proved wrong several times by High Courts and Supreme Court by outright rejection of petitions filed by Governments”.

Speaking on the issue of enforcement of arbitral awards in India, he said that, “There is need to have Asset Registry law in India. Where assets are registered, verifiable and easily available along with independent regulatory mechanism. Also making false registration of assets be made punishable under the law”.

Further on the issue, he stated that, “Courts have to stop encouraging Governments to challenge Arbitral Awards. Courts and governments have to change their mindset”.

Mr Harish Salve gave series of advice to the young professionals interested in field of international arbitration. He stated that, “One should always start as a counsel, start working in the arbitration cases but do not completely disconnect from court functioning”. He further added that, “Although life would not be as exciting as your colleague in Courts but it will be intellectually rewarding working in field of arbitration”.

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