Indian Courts - Protections for Foreign Businesses
A recent paper has undertaken a striking ‘first systemic analysis’ on whether developing country governments ‘treat foreign firms better, worse or the same as domestic firms’ and has concluded that ‘foreign firms tend to be treated at least as well by developing country governments as comparable domestic firms on average’ (see, Aisbett et al., Relative Treatment of Aliens: how level is the playing field for foreign firms in developing countries Socio-Economic Review 2024). That is relevant for several reasons, not least given the increasing use of administrative law-based court actions by foreign companies across the world including in developed countries. It also brings back focus on the more traditional question of access to remedies in various jurisdictions for foreign businesses. For instance, the US Constitution confers wide-ranging rights on all persons and makes the government liable to suit, including by foreigners. There also exist separate statutory remedies for foreign entities in the US such as those under the Alien Torts Statute, 1948 and the Administrative Procedures Act, 1946 — the latter prominently used by Huawei when challenging USFCC’s prohibition on US companies from purchasing its 5G technology (see, Huawei v. Federal Communications Commission, 5th Circuit, 2021).