This paper argues that the White Industries Ltd. case must act as an eye opener for the Indian Government. It is a landmark decision, not just for the position of law adopted in the final award, but it also for its significance as a precursor to what may lie ahead if India were to continue the same way with her investment regime. It raises several questions to which the Indian government needs to find answers on an urgent basis. What would India do if every foreign investor affected by “delayed justice” or the decisions of the Supreme Court, such as in the Vodafone case or the 2G case, goes for investment arbitration? What can India do about the backlog of cases and about the possibility of losing every investment claim on the ground of delay of justice? Is it in the interest of India to pay damages to the tune of four million Australian Dollars to a foreign investor even as her citizens often end up waiting for decades for justice from the higher judiciary? This paper posits that India needs to give serious thought to how she wants to manage the future of investment regime in India.
As of 0:00 GMT March 12001India had a total of 1027015247 people. It is the second country following only China to cross the one billion population mark. Office of the Register Gen. Census of India 2001 Provisional Population Totals: India (2001) http://www.censusindia.net/results/resultsmain.html. See generally Xizhe Peng Population Policy and Program in China: Challenge and Prospective 35 Tex. Int’l L.J. 51 54 (2000)