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 32
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.
6 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.
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.
