The Indian Model BIT
Recall that a while back, I talked about a new draft Indian model BIT. As Investment Arbitration Reporter explains, India now has a final version of this model BIT. IA Reporter has the complete rundown; I'm just going to mention briefly the general exceptions clause. In the draft version, this appears to have been "self-judging." Now, by contrast, it looks more like a typical exceptions clause:
Article 326 In considering whether a measure is “necessary”, the Tribunal shall take into account whether there was no less restrictive alternative measure reasonably available to a Party.
General Exceptions
32.1 Nothing in this Treaty shall be construed to prevent the adoption or enforcement by a Party of measures of general applicability applied on a nondiscriminatory basis that are necessary6 to:
(i) protect public morals or maintaining public order;
(ii) protect human, animal or plant life or health;
(iii) ensure compliance with law and regulations that are not inconsistent with the provisions of this Agreement;
(iv) protect and conserve the environment, including all living and nonliving natural resources;
(v) protect national treasures or monuments of artistic, cultural, historic or archaeological value.
I'm not sure why these exceptions clauses are so rare in investment obligations. Somebody is pushing back against them, obviously, but if we are trying to find a good balance in the rules, this could help a lot. One thing it would do is create a general health exception, which seems like it would be less controversial, politically speaking, than a health related carveout for tobacco only. Maybe that's a tweak that could get the TPP moving. Take out the TPP tobacco carveout, so as to get the tobacco state members of Congress on board; and add a general exceptions clause, to soften up the ISDS critics.