New-look Bipa won't let MNCs milk tax havens

The new treaty will provide protection only to companies with substantial business activity in their home country

The finance ministry has finalised a proposal for a model bilateral investment treaty to replace the current Bipa (bilateral investment protection agreement). The model will provide protection only to companies and natural persons  with substantial business activity in their home country. The move will help prevent treaty shopping, the practice of multinational companies taking advantage of more favourable tax jurisdictions (also known as tax havens).

The proposed model would require the enterprise to have substantial operations in India and would exclude claims of indirect or minority shareholders. It would only entertain the claims of investors with at least 50 per cent stake or the right to appoint a majority of the directors or senior management personnel.

The model draft proposal has also made it clear that tax measures will be excluded from the BIT (bilateral investment treaty). In simple terms, this means no tax measure introduced by the host country will be subject to any dispute settlement under the BIT.

The new model clearly defines government for the first time to include only the central and state governments and not activities of any local government.



The proposed model agreement plans to remove some of the broad obligations found in the current Bipa model, which gives arbitral tribunals wide latitude to interpret provisions. So, the most favoured nation obligation would be removed.

The new model would introduce an early review mechanism to dismiss frivolous claims leading to significant costs. It also establishes a mechanism under which a host country can pursue counter claims against foreign investors for their illegal conduct.

Under the Bipa, the exceptional provisions to preserve the right of the state to develop policies in accordance with national interest are limited. It contains only one exception: essential security interest. The new model broadens the scope to include protection of the environment, conservation of natural resources, stability and integrity of the financial system, public health and safety, and improving working conditions, amongst others.

Under the proposed model of investor-state dispute settlement, the aggrieved party should exhaust all adminstrative and judicial procedures within a specified time frame within the country before the claim can be submitted for arbitration. Upon exhaustion of these remedies, the investor will have to engage in consultation with the host state to find a solution for one year. Failure to go through this process will lead to the investor being barred from pursuing investor-state arbitration.

The proposed model would also balance investor rights with their obligations under the domestic law. So, it does not provide any protection to investors who violate core obligations under the law.

A new model agreement was needed by the government as there had been a substantial increase in the amount of disputes under Bipa. The number of disputes went up to 550 in 2012. In that year, 58 new cases were initiated, the highest in a single year.