Papers by Swargodeep Sarkar
Liverpool Law Review, 2022
Iran and the United States (US) have resorted to the International Court of Justice (ICJ) on five... more Iran and the United States (US) have resorted to the International Court of Justice (ICJ) on five occasions to settle their disputes. The latest dispute was initiated by Iran and pertains to US’s decision of withdrawal from the Joint Comprehensive Plan of Action (JCPOA) agreement and re-imposition of sanctions on Iran, including its nationals and companies. In this brief critique, the authors have analysed the preliminary objections and the ICJ’s approach in deciding the dispute. The authors have noticed that the ICJ digressed from its earlier decisions which involved the Treaty of Amity 1955 between Iran and the US. It is also to be noted that the ICJ has not substantiated its deviation with analytical observation. Also, it is opined that although the international adjudication lacks a system of precedent, it is the sacrosanct duty of the ICJ to establish a coherent jurisprudence in the interest of justice, which the ICJ has consciously neglected to achieve in this present dispute.
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International Arbitration Law Review, 2021
The global trade and investment crumbled during the Covid-19 pandemic. Like any other state, Indi... more The global trade and investment crumbled during the Covid-19 pandemic. Like any other state, India has adopted several strict regulatory measures to contain this global pandemic from spreading in this health emergency. These health-related regulatory measures such as national lockdown, close down of all business and trade activities except essential business activities, temporary closure of international borders, prohibition on exports, incentives to importers could potentially breach two most essential and frequently invoked provisions of any investment treaty, i.e. indirect expropriation and fair and equitable standard. Thus, it is expected that foreign investors will initiate several arbitration proceedings against India under investment treaties. This article analyses whether the police powers doctrine could offer India an effective defence to avoid paying bulky compensation. It further highlights that although the police powers rule is deeply rooted in international law, the arbitral tribunals differ on the doctrine's content and scope. What if the police powers rule is absent in the applicable treaty? Can India still argue based on police powers? What if the measures adopted for containing Covid-19 are disproportionate to what the objectives aimed to achieve.
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The global trade and investment crumbled during the Covid-19 pandemic. Like any other state, Indi... more The global trade and investment crumbled during the Covid-19 pandemic. Like any other state, India has adopted several strict regulatory measures to contain this global pandemic from spreading in this health emergency. These health-related regulatory measures such as national lockdown, close down of all business and trade activities except essential business activities, temporary closure of international borders, prohibition on exports, incentives to importers could potentially breach two most essential and frequently invoked provisions of any investment treaty, i.e. indirect expropriation and fair and equitable standard. Thus, it is expected that foreign investors will initiate several arbitration proceedings against India under investment treaties. This article analyses whether the police powers doctrine could offer India an effective defence to avoid paying bulky compensation. It further highlights that although the police powers rule is deeply rooted in international law, the arbitral tribunals differ on the doctrine's content and scope. What if the police powers rule is absent in the applicable treaty? Can India still argue based on police powers? What if the measures adopted for containing Covid-19 are disproportionate to what the objectives aimed to achieve.
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India, Health-related Regulatory Measures, and Investment Treaty Arbitration-Can Police Powers Doctrine be a Knight in Shining Armour?, 2021
The global trade and investment crumbled during the Covid-19 pandemic. Like any other state, Indi... more The global trade and investment crumbled during the Covid-19 pandemic. Like any other state, India has adopted several strict regulatory measures to contain this global pandemic from spreading in this health emergency. These health-related regulatory measures such as national lockdown, close down of all business and trade activities except essential business activities, temporary closure of international borders, prohibition on exports, incentives to importers could potentially breach two most essential and frequently invoked provisions of any investment treaty, i.e. indirect expropriation and fair and equitable standard. Thus, it is expected that foreign investors will initiate several arbitration proceedings against India under investment treaties. This article analyses whether the police powers doctrine could offer India an effective defence to avoid paying bulky compensation. It further highlights that although the police powers rule is deeply rooted in international law, the arbitral tribunals differ on the doctrine's content and scope. What if the police powers rule is absent in the applicable treaty? Can India still argue based on police powers? What if the measures adopted for containing Covid-19 are disproportionate to what the objectives aimed to achieve.
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Social Science Research Network, 2020
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Social Science Research Network, 2021
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SSRN Electronic Journal, 2020
During a recent visit to India (24th – 27th January) as a chief guest of the Republic Day celebra... more During a recent visit to India (24th – 27th January) as a chief guest of the Republic Day celebration, Brazilian President Jair Messias Bolsonaro sketched an ambitious plan to revitalization their faltering economy. This new strategic partnership will expand cooperation in key sectors of the economy such as oil, gas, and mining, while it was setting the target of USD 15 billion in bilateral trade by 2022. While approaching to WTO against India for extending support to her sugarcane farmers, Brazil penned investment cooperation and facilitation treaty. This is Brazil’s 10thand India’s 4thbilateral investment agreement since both nations had adopted their Model Bilateral Investment Treaty. Previously, India has managed to conclude bilateral investment treaties with Belarus, Kyrgyzstan, and Cambodia after scrapping down all 83 existing bilateral investment treaties. The object and purpose of this short write-upare to critically analyze and compare the new Brazil-India Cooperation and Facilitation Treaty (Brazil-India BIT) with the Model BITs of India and Brazil. It will be discussed who deviates from Model BIT and to what extent to sign the investment agreement. Moreover, the author will evaluate whether both countries have compromised their interest to strike a deal and who wins the deal or to what extent.
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Liverpool Law Review, 2022
Iran and the United States (US) have resorted to the International Court of Justice (ICJ) on five... more Iran and the United States (US) have resorted to the International Court of Justice (ICJ) on five occasions to settle their disputes. The latest dispute was initiated by Iran and pertains to US’s decision of withdrawal from the Joint Comprehensive Plan of Action (JCPOA) agreement and re-imposition of sanctions on Iran, including its nationals and companies. In this brief critique, the authors have analysed the preliminary objections and the ICJ’s approach in deciding the dispute. The authors have noticed that the ICJ digressed from its earlier decisions which involved the Treaty of Amity 1955 between Iran and the US. It is also to be noted that the ICJ has not substantiated its deviation with analytical observation. Also, it is opined that although the international adjudication lacks a system of precedent, it is the sacrosanct duty of the ICJ to establish a coherent jurisprudence in the interest of justice, which the ICJ has consciously neglected to achieve in this present dispute.
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United Nations Secretary-General Antonio Guterres acknowledged Rohingya, “one of, if not the, mos... more United Nations Secretary-General Antonio Guterres acknowledged Rohingya, “one of, if not the, most discriminated people in the world”. In Myanmar, a country with a Buddhist majority, around a million Rohingya who is the minority having their language and culture, have been persecuted for decades. In the year 2014 census, Myanmar excluded Rohingya by denying basic citizenship. Thousands of Rohingya have fled to neighbouring States after facing persecution orchestrated by Myanmar security forces with the help of local Buddhist mobs. In this background, the Gambia with the help of Organisation of Islamic Cooperation filed the case in the International Court of Justice, alleging that the actions perpetrated by Myanmar violated the provisions of Genocide Convention 1948 to which both States are the parties. Myanmar rightly questioned the standing of Gambia as the interest of Gambia was not threatened or at stake. So, in the absence of a cause of action or rights of the Gambia not affecte...
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Liverpool Law Review, 2021
The Indian intelligentsia is very much well aware of the surname Chandrachud. It is
spread over ... more The Indian intelligentsia is very much well aware of the surname Chandrachud. It is
spread over three generations, and the last one bears the name Abhinav. He is known
to readers for his several vital books to his credit, and the book Republic of Religion
is the latest. It is a book for serious readers who want to delve into the realm of
the troubled times of colonial rule in India and how the time’s wrongs walked into
the modern-day historical complexities, socio-political crises, producing devastating
consequences to the Indian polity and national fabric of our subcontinent.
Republic of religion has a comprehensive introduction where the author deftly
portrays his views and fascinates the readers to know the minutiae. His chapter wise
briefing helps the readers to appreciate and go in-depth appraisal with a thirst for
the niceties. The book offers a reasonable assessment of how the pernicious hoaxes
of the colonial rulers overturned the hopes of people in the Indian subcontinent and
how the then Indian leaders fell prey knowingly or unknowingly to the stratagem
of the British ruler. The Republic of Religion is divided over six chapters, and each
chapter has a caption title giving the reader a hint of the text. These apart, the author
has annexed comprehensive acknowledgements and reference notes which are very
much in tune to his commitment.
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Foreign Trade Review, 2021
The most sanctified obligation of the World Trade Organization (WTO) is the promotion and facilit... more The most sanctified obligation of the World Trade Organization (WTO) is the promotion and facilitation of international trade and liberalisation of the world economy. Although WTO members are committed to the WTO principle of free flow of goods and services among its members, the WTO permits its members to retain certain regulatory powers under its system to impose trade-restrictive measures based on certain exceptions, like, among other things, public morality under Article XX(a) of the General Agreement on Tariffs and Trade (GATT, 1994). Nevertheless, the question remains: what is public morality for a WTO member, and how far may this clause be invoked in defence of adopting trade-restrictive measures? Recently, the WTO panel on the US tariff case revived the long-standing debate on international trade versus public morality. Is a WTO member free to choose any trade-restrictive measure under the cloak of public morality? Then, what mechanism has the WTO panel/AB (Appellate Body) e...
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Modern Diplomacy , 2020
During a recent visit to India (24th – 27th January) as a chief guest of the Republic Day celebra... more During a recent visit to India (24th – 27th January) as a chief guest of the Republic Day celebration, Brazilian President Jair Messias Bolsonaro sketched an ambitious plan to revitalization their faltering economy. This new strategic partnership will expand cooperation in key sectors of the economy such as oil, gas, and mining, while it was setting the target of USD 15 billion in bilateral trade by 2022. While approaching to WTO against India for extending support to her sugarcane farmers, Brazil penned investment cooperation and facilitation treaty. This is Brazil’s 10thand India’s 4thbilateral investment agreement since both nations had adopted their Model Bilateral Investment Treaty. Previously, India has managed to conclude bilateral investment treaties with Belarus, Kyrgyzstan, and Cambodia after scrapping down all 83 existing bilateral investment treaties. The object and purpose of this short write-upare to critically analyze and compare the new Brazil-India Cooperation and F...
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Liverpool Law Review, 2021
The consulting editor Julien Fouret introduces the book with a quotation of the great Greek philo... more The consulting editor Julien Fouret introduces the book with a quotation of the great Greek philosopher Aristotle ", and the end is the chief thing of all". A very much suitable remark in the realm of investment arbitration. The reason is that mostly it is only after a final and binding award is rendered, a few specific practical issues arise at the enforcement stage. While the majority of scholarly works in investment treaty arbitration are on substantive issues such as principles of international investment law, legal rights and obligations of the States and the investors, treaty interpretation and applicable laws, there is not much literature on the issues that arise in post-investment awards, i.e. at the time of enforcing the investment awards in domestic courts. This book is an excellent attempt to fill this void. So, we must remain thankful to the consulting editor and every contributors of this edited volume.
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MUSAMUS LAW REVIEW Volume 3 Issue 1, 2020
United Nations Secretary-General Antonio Guterres acknowledged Rohingya, "one of, if not the, mos... more United Nations Secretary-General Antonio Guterres acknowledged Rohingya, "one of, if not the, most discriminated people in the world". In Myanmar, a country with a Buddhist majority, around a million Rohingya who are the minority having their language and culture, have been persecuted for decades. In the year 2014 census, Myanmar excluded Rohingya by denying basic citizenship. Thousands of Rohingya have fled to neighboring States after facing persecution orchestrated by Myanmar security forces with the help of local Buddhist mobs. In this background, the Gambia with the help of the Organization of Islamic Cooperation filed the case in the International Court of Justice, alleging that the actions perpetrated by Myanmar violated the provisions of the 1948 Genocide Convention to which both States are the parties. Myanmar rightly questioned the standing of Gambia as the interest of Gambia was not threatened or at stake. So, in the absence of a cause of action or rights of Gambia not affected even remotely, the International Court of Justice should not entertain the case. One of the major issues before the Court whether Gambia has stood without being affected directly from the violations alleged to have been committed on the Rohingya. The present author will discuss the provisional measures rendered by the ICJ on 23rd January 2020 and the challenges such as jurisdiction, admissibility, urgency or irreparable prejudice condition, faced by the Court with a special focus on the "Plausibility requirement" in provisional measures.
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Cornell International Law Journal Online, 2020
Deep seabed mining (DSM) has become more accessible with the advancement of modern technology. Th... more Deep seabed mining (DSM) has become more accessible with the advancement of modern technology. The exploration and exploitation of oil and gas are some of the most common activities on the seabed. In 1873, during the scientific expedition of the HMS Challenger, scientists first discovered polymetallic nodules on the ocean floor. However, due to lack of advanced science and technology, it was not possible for States to explore and exploitate mineral resources found in deep seabed. Again during the International Geophysical Year (1957-58), polymetallic nodules were collected on the Tuamotu Plateau at a depth of some 900 meters. These nodules are a rich source of valuable minerals such as manganese, copper, cobalt, nickel, and others. At that time, DSM activities proved to be commercially lucrative and appeared to be an issue of international interest. Under the auspices of the UN, negotiation began to develop a legal regime concerning DSM. After years of negotiations in 1982, the member States adopted the UN Convention of the Law of the Sea (UNCLOS) which incorporated provisions relating to DSM in part XI. However, UNCLOS came into force in 1994 only after an amendment was made to part XI by an implementation agreement. Since the last decade, DSM activities increased and States have rekindled their interest in DSM. DSM activities which
involve significant foreign direct investment1 (FDI) and technological knowhow, are mostly undertaken by private entities that are required to obtain a license from the predominantly coastal States. Disputes might ensue between the sponsoring State and a foreign-owned mining entity regarding i) implementation of the sponsorship agreement; and ii) revocation of the certificate of sponsorship. The DSM legal regime does not offer a dispute settlement mechanism between the sponsoring State and a foreign investor as the agreement is only valid between the contracting parties. Thus, in this article I will argue that in the absence of a dispute settlement forum for foreign investors, international investment law vis à vis investment arbitration
could rescue and protect investment in DSM when the Sponsoring State’s activities adversely affects investors’ interests.
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Papers by Swargodeep Sarkar
spread over three generations, and the last one bears the name Abhinav. He is known
to readers for his several vital books to his credit, and the book Republic of Religion
is the latest. It is a book for serious readers who want to delve into the realm of
the troubled times of colonial rule in India and how the time’s wrongs walked into
the modern-day historical complexities, socio-political crises, producing devastating
consequences to the Indian polity and national fabric of our subcontinent.
Republic of religion has a comprehensive introduction where the author deftly
portrays his views and fascinates the readers to know the minutiae. His chapter wise
briefing helps the readers to appreciate and go in-depth appraisal with a thirst for
the niceties. The book offers a reasonable assessment of how the pernicious hoaxes
of the colonial rulers overturned the hopes of people in the Indian subcontinent and
how the then Indian leaders fell prey knowingly or unknowingly to the stratagem
of the British ruler. The Republic of Religion is divided over six chapters, and each
chapter has a caption title giving the reader a hint of the text. These apart, the author
has annexed comprehensive acknowledgements and reference notes which are very
much in tune to his commitment.
involve significant foreign direct investment1 (FDI) and technological knowhow, are mostly undertaken by private entities that are required to obtain a license from the predominantly coastal States. Disputes might ensue between the sponsoring State and a foreign-owned mining entity regarding i) implementation of the sponsorship agreement; and ii) revocation of the certificate of sponsorship. The DSM legal regime does not offer a dispute settlement mechanism between the sponsoring State and a foreign investor as the agreement is only valid between the contracting parties. Thus, in this article I will argue that in the absence of a dispute settlement forum for foreign investors, international investment law vis à vis investment arbitration
could rescue and protect investment in DSM when the Sponsoring State’s activities adversely affects investors’ interests.
spread over three generations, and the last one bears the name Abhinav. He is known
to readers for his several vital books to his credit, and the book Republic of Religion
is the latest. It is a book for serious readers who want to delve into the realm of
the troubled times of colonial rule in India and how the time’s wrongs walked into
the modern-day historical complexities, socio-political crises, producing devastating
consequences to the Indian polity and national fabric of our subcontinent.
Republic of religion has a comprehensive introduction where the author deftly
portrays his views and fascinates the readers to know the minutiae. His chapter wise
briefing helps the readers to appreciate and go in-depth appraisal with a thirst for
the niceties. The book offers a reasonable assessment of how the pernicious hoaxes
of the colonial rulers overturned the hopes of people in the Indian subcontinent and
how the then Indian leaders fell prey knowingly or unknowingly to the stratagem
of the British ruler. The Republic of Religion is divided over six chapters, and each
chapter has a caption title giving the reader a hint of the text. These apart, the author
has annexed comprehensive acknowledgements and reference notes which are very
much in tune to his commitment.
involve significant foreign direct investment1 (FDI) and technological knowhow, are mostly undertaken by private entities that are required to obtain a license from the predominantly coastal States. Disputes might ensue between the sponsoring State and a foreign-owned mining entity regarding i) implementation of the sponsorship agreement; and ii) revocation of the certificate of sponsorship. The DSM legal regime does not offer a dispute settlement mechanism between the sponsoring State and a foreign investor as the agreement is only valid between the contracting parties. Thus, in this article I will argue that in the absence of a dispute settlement forum for foreign investors, international investment law vis à vis investment arbitration
could rescue and protect investment in DSM when the Sponsoring State’s activities adversely affects investors’ interests.