International investment treaty implications for the Indian position on nuclear liability

International investment treaty implications for the Indian position on nuclear liability

By Vyoma Jha
Journal of Risk Research, 21 August 2013

Abstract: With foreign corporations setting up nuclear reactors in India and the increasing likelihood of greater foreign direct investment in the nuclear energy sector, the threat of foreign investor claims against India’s nuclear-related policies is a real one. For instance, Russia’s most recent attempt to seek liability waiver under the Civil Liability for Nuclear Damage Act, 2010 could unravel a string of problems for India if viewed from an investment lens, thus making it crucial to assess the implications of India’s investment treaties for its nuclear law and policy. This paper aims to provide an understanding of the opportunities and pitfalls that India’s investment treaties present for its domestic nuclear-related policies and regulatory action. In doing so, the paper will analyze the core principles of international investment law and policy and the latest case developments, which includes 2011’s controversial Vattenfall arbitration against Germany’s decision to phase out nuclear energy, the first known nuclear-related investor-state arbitration. This paper makes the first attempt to outline why India’s present position on nuclear liability leaves it vulnerable to investor challenge under its various investment treaty commitments.

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