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哥伦比亚大学国际直接投资展望中文版都可以在我们的网站查看:http://ccsi.columbia.edu/publications/columbia-fdi-perspectives.

Columbia FDI Perspectives

Perspectives on topical foreign direct investment issues
No. 301  April 5, 2021

Editor-in-Chief: Karl P. Sauvant ([log in to unmask])
Managing Editor: Riccardo Loschi ([log in to unmask])
 
Prior to the ongoing pandemic, and despite India’s economic slowdown, FDI inflows had been officially recorded at a historical high.[1] Concurrently, India’s “ease of doing business” ranking rose significantly. Investment-facilitation measures have potentially been a significant yet underrecognized force bringing about this result. At the federal level, leading such measures is Invest India, the country’s core institution for investment promotion and facilitation. Invest India is a government-funded, not-for-profit private-public partnership wherein domestic private industry chambers hold the majority of shares. This allows it to provide all facilitation services free-of-charge, while maintaining strong connections with industry networks and credibility within the state.
 
For a large and politically diverse state such as India, the potential incompatibility of investment-facilitation measures (such as national focal points and single-window clearance mechanisms) with its federal state structure has been a legitimate concern, particularly given how FDI projects inevitably require clearances from multiple levels of subnational political entities. Yet, Invest India virtually coordinates between federal and provincial state agencies, both horizontally and vertically. It therefore helps to diminish procedural inefficiencies caused by the “center vs. state” demarcation, using a managerial approach whereby a single “relationship manager” collaborates with both federal and state governments and supports an investor during the entire investment lifecycle. By doing so, it attempts to fast-track all types of licenses, approvals and clearances for investors, without encroaching upon the constitutionally guaranteed functional autonomy of regional and local authorities.
 
Despite the domestic adoption of investment-facilitation measures, India has consistently opposed discussions on investment facilitation at the WTO and declined attending any related meetings or workshops. While the Indian government has provided official reasons, including the WTO’s lack of mandate and greater priority of such other issues such as food security, critics have also addressed the risks of policy-space curtailment and market-access obligations, despite their explicit exclusion in the various proposals.[2]
 
The institutional structure and division of responsibilities within India’s administrative services may shed additional light on the country`s stance. Reflecting the subject matter overlap of FDI-related measures being negotiated at an international trade body, multiple independent departments of the central government are involved in internal deliberations. First, the Department of Commerce of the Ministry of Commerce and Industry (“DOC”), whose mandate covers international trade policy and related institutions such as the WTO. Second, the Department for Promotion of Industry and Internal Trade (“DPIIT”) of the same ministry, which formulates and governs FDI policy in India. Third, the Department of Economic Affairs of the Ministry of Finance (“DEA”), which oversees India’s negotiations of investment treaties and investment chapters within FTAs.[3]
 
While the DOC and the DPIIT have been proponents of India’s participation in the WTO’s investment-facilitation negotiations,[4] the DEA, which inter alia has been defending against India’s hefty load of investment arbitration claims[5] and is understandably cautious, has persistently opposed the idea. This underlying complexity beneath an official government position—where various departments “share the turf”—gives the upper hand (by means of possessing the heavier clout and the stronger mandate) to the department that also holds unfavorable views of FDI rules that are binding and enforceable.
 
Whether India’s decision to entirely shun investment facilitation discussions at the WTO will detrimentally affect incoming FDI is unclear, especially since the principal FDI determinants are typically economic factors.[6] Greater empirical work is needed on the issue and, more generally, on the impact of investment-facilitation measures on qualitative factors as welfare impact, sustainable development, administrative accountability, and dispute prevention. Such research would help to understand key policy issues for India, namely: what is the added gain of joining a multilateral agreement with binding obligations and an uncertain scope for security exceptions when related measures are already domestically available; and if and how the benefits outweigh the additional administrative costs.
 
That said, total non-participation from the outset is arguably overkill and an unnecessarily strict position for an agenda that is relatively technical, uncontroversial and might well yield an actual agreement by the 12th WTO Ministerial Conference scheduled for 2021. As it stands, more than 100 WTO members are now participating in the negotiations. Due to this heightened traction, it is potentially worth re-evaluating whether the Indian position is not excessively cautious and overuses the “BIT lens” to view investment facilitation. Instead, the question should be asked: should India be contributing toward shaping the rules on investment facilitation now, rather than risk being a rule-taker later?
 

* The Columbia FDI Perspectives are a forum for public debate. The views expressed by the author(s) do not reflect the opinions of CCSI or Columbia University or our partners and supporters. Columbia FDI Perspectives (ISSN 2158-3579) is a peer-reviewed series.
** Manu Misra ([log in to unmask]) is a Post-Doctoral Global Fellow at the FGV Law School in São Paulo, Brazil. The author wishes to thank Premila Nazareth, Kavaljit Singh and an anonymous peer reviewer for their helpful peer reviews.
[1] Over US$50 billion from April-2019 to March 2020. Fact Sheet on FDI April 2000 – March 2020.
[3] See the 1961 Government of India (Allocation of Business) Rules. The DEA’s role is also recognized by the Brazil - India Investment Cooperation and Facilitation Treaty (2020).
[5] To date, at least 25 ISDS claims have been brought against India.
[6] For instance, much needed reforms in land ownership, tax and labor law would have greater and more immediate impacts on India’s attractiveness for inward FDI.
The material in this Perspective may be reprinted if accompanied by the following acknowledgment: “Manu Misra, ‘Investment facilitation and India: A closer look,’ Columbia FDI Perspectives No. 301, April 5, 2021. Reprinted with permission from the Columbia Center on Sustainable Investment (www.ccsi.columbia.edu).” A copy should kindly be sent to the Columbia Center on Sustainable Investment at [log in to unmask].
For further information, including information regarding submission to the Perspectives, please contact: Columbia Center on Sustainable Investment, Riccardo Loschi, [log in to unmask].
 
Most recent Columbia FDI Perspectives   
  • No. 300, Daniel Naujoks, “Engaging diaspora direct investors: The four elements of successful policy regimes,” Columbia FDI Perspectives, March 22, 2021
  • No. 299, Axel Berger and Manjiao Chi, ‘The EU-China Comprehensive Agreement on Investment: Stuck half-way?,’ Columbia FDI Perspectives, March 8, 2021
  • No. 298, Karl P. Sauvant and Louis T. Wells, ‘Obsolescence of the obsolescing bargain: Why governments must get investor-state contracts right,’ Columbia FDI Perspectives, February 22, 2021
All previous FDI Perspectives are available at http://ccsi.columbia.edu/publications/columbia-fdi-perspectives/

Other relevant CCSI news and announcements
  • On April 15, 8-9:30 am ET, CCSI will host Crippling Compensation in ISDS: Current practices and new approaches. The issue of damages in investor-state dispute settlement (ISDS) is gaining increased attention. One important dimension of that issue is the legal relevance, if any, of an award or series of awards being "crippling" for a State. Join us for a lively discussion of the topic, which will draw from and build on Martins Paparinskis's paper, A Case Against Crippling Compensation in International Law of State Responsibility. Please see our website for more details and to register for this online event.
  • On May 26, 11am-12pm ET, CCSI will host Investment Treaties and a New Legal Imagination. In the recently published book, Investment Treaties and the Legal Imagination, Nicolás M. Perrone excavates the origins and evolution of the legal thinking underpinning the investment treaty regime and ISDS practice. Three distinguished speakers will discuss with the author the implications of these findings for the future of international investment law. Please see our website for more details and to register for this online event.
  • New volume published! The Yearbook on International Investment Law and Policy (edited by CCSI's Lisa Sachs, Lise Johnson, and Jesse Coleman) monitors current developments in international investment law and policy. Part One focuses on trends in foreign direct investment, international investment agreements and investment disputes, and Part Two looks at central issues in the contemporary discussions on international investment law and policy. This volume includes a chapter by CCSI's Jesse Coleman, Lise Johnson, Ella Merrill, and Lisa Sachs. Please visit our website for more information and to automatically receive a 20% discount!
Karl P. Sauvant, Ph.D.
Resident Senior Fellow
Columbia Center on Sustainable Investment
Columbia Law School - Earth Institute
Ph: 
(212) 854-0689
Fax: (212) 854-7946
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Karl P. Sauvant, PhD

Resident Senior Fellow

Columbia Center on Sustainable Investment
Columbia Law School - The Earth Institute, Columbia University
435 West 116th St., Rm. JGH 825, New York, NY 10027
p(212) 854 0689 | cell: (646) 724 5600 e: [log in to unmask]
wwww.ccsi.columbia.edu | t: @CCSI_Columbia

"Facilitating Sustainable FDI in a WTO Investment Facilitation Framework: Four Concrete Proposals", "Multinational Enterprises and the Global Investment Regime: Toward Balancing Rights and Responsibilities”, “The WIR at 30: Contributions to National and International Policymaking", "An Inventory of Concrete Measures to Facilitate the Flow of Sustainable FDI: What? Why? How?", "Note on the Costs and Financing of an Advisory Centre on International Investment Law", "Insulating a WTO Investment Facilitation Framework from ISDS", "Making FDI more Sustainable", "The Case for an Advisory Centre on International Investment Law", "The Potential Value-added of a Multilateral Framework on Investment Facilitation for Development", "International Investment Facilitation: By Whom and for What?" are available at https://ssrn.com/author=2461782 .

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