The draft Indian model BIT (PDF is here), which I just heard about (from Mona Pinchis), has some new language on minimum standard of treatment:
Chapter II: Obligations of Parties
Article 3: Standard of Treatment
3.1 Each Party shall not subject Investments of Investors of the other Party to Measures which constitute:
(i) Denial of justice under customary international law1
(ii) Un-remedied and egregious violations of due process; or
(iii) Manifestly abusive treatment involving continuous, unjustified and outrageous coercion or harassment.
3.2 A determination that there has been a breach of another provision of this Treaty, or of a separate international agreement, does not establish that there has been a breach of this Article.
1 For greater certainty, it is clarified that “customary international law” only results from a general and consistent practice of States that they follow from a sense of legal obligation.
Does this satisfy ISDS critics (like me, for example!), by reining in MST? Maybe. I'll have to think about it. I still think we need some evidence of what exactly the problematic government behavior is. Without that, I'm not sure what the problem is that we are trying to fix.
They also have the following language on national treatment:
Article 4: National Treatment
4.1 Each Party shall not apply to Investments, Measures that accord less favourable treatment than that it accords, in like circumstances,2 to domestic investments with respect to the management, conduct, operation, sale or other disposition of Investments in its territory.
4.2 A breach of Article 4.1 will only occur if the challenged Measure constitutes intentional and unlawful discrimination against the Investment on the basis of nationality
2 The requirement of “like circumstances” recognizes that States may have various legitimate reasons for distinguishing between investments including, but not limited to, (a) the goods or services consumed or produced by the Investment; (b) the actual and potential impact of the Investment on third persons, the local community, or the environment, (c) whether the Investment is public, private, or state-owned or controlled, and (d) the practical challenges of regulating the Investment. The factors and determinations used by the Host State to distinguish between Investors and Investments are to be given substantial deference by any tribunal constituted under Article 14.5 or Article 15.2.
That language, I think, is helpful, although it's not clear to me what "unlawful" means here -- unlawful under domestic law?
There are other provisions, too, but I haven't gone through them all. They are asking for comments, due by April 10.
