Recently the news media has been abuzz with the dispute between the Maldivian Government and Infrastructure Company, GMR. The Government of India has taken up the issue with the Maldivian Government o
Dear Shasank,Sorry for the late reply.I just read your article-a very interesting read.It is not my case that International Investment Law actually provides an immunity to corruption.No, it does not.If it is a case can be proved , say Contract between A v B (state)1. There has been an act of corruption by A against B (bribery of the President)2. That the contract is a result of the act of bribery .The contract can be undoubtedly voided by an international tribunal. ( remember World Duty Free v Kenya)But corruption is usually not such a cut and dry issue and such factual co-realation would be very hard to prove.Indeed it is not merely an issue of evidence but I would say also an issue of substantive law in so far as Investment law tend to put a wider liability on state for the actions of its agents ,including wrongful ones.Also Investment law requires the delict to have a direct nexus with the contract.These requirements though justified from the point of view of the economics of international investment, ends up creating a space where corruption can exist.Think of what would happen in a case like 2G scandal.The CAG report unmistakably points to malafide but no express corruption has been proved against anybody.The 2G scenario is a more typical of an big international contract/tender rather than the clear-cut scenario of World Duty Free.This is where the International Investment law may falter.Anyways corruption in investment is only a small part of the story, it merits a separate article itself.
A very good article. I have two comments:1. As the author rightly notes, international law only gives a RIGHT to India to exercise diplomatic protection, it does not impose an OBLIGATION on India to exercise diplomatic protection.2. I have some reservations about the argument that BITs do not address the integrity of investments. Investment tribunals have addressed issues of investor misconduct before (fraud, lack of due diligence, misrepresentation), and have also undertaken a balancing task of the state's complicity.My detailed thoughts are available on my blog: ilcurry.wordpress.com/2012/12/06/gmr-maldives-and-international-law/Shashank
This article is so kewl!!very naaice che...
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