Abstract
India is of the view that the MFN provision in Bilateral Investment Treaties (BITs) has proved to be disadvantageous because it disturbs the various strategic, diplomatic and political reasons behind negotiating bilateral treaties. In view of this, this paper maps and studies the MFN provision in all Indian BITs and assesses its implications in light of the burgeoning and divergent investment treaty arbitration jurisprudence on MFN. This detailed mapping and assessment is also timely given the fact that India is revisiting all its BITs and endeavouring to develop a new model BIT, as mentioned before. This mapping reveals the broad and unqualified nature of the MFN provision in Indian BITs that could be used for treaty shopping by investors. Thus, the paper concludes that India should consider limiting the applicability of the MFN provision to actual cases of discrimination while applying domestic measures (like laws, regulations, etc.) and not allow it to be used by foreign investors for ‘treaty shopping’.
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