Article 4(5) of the India-Kuwait BIT states that:

The Australian-Indian BIT contains no such obligation, but White was able to invoke the India-Kuwait BIT by relying on the most favoured nation clause in the Australian-Indian treaty.

White had interests in two sets of court proceedings in India:

In determining whether the BIT had been breached, the tribunal followed the application of the effective means standard in Chevron.

India contended that the Australian-Indian BIT emphasises the application of national laws to investments and that the most favoured nation clause must be interpreted to take this balance into account. India also attempted to distinguish Chevron, due to differences between the US-Ecuador BIT applied in Chevron and the India-Kuwait BIT.

Unlike the India-Kuwait BIT, the effective means obligation in the US-Ecuador BIT does not contain the "in accordance with its applicable laws and regulations" qualification, an issue that some commentators have already noted since the UNCITRAL award was made. India attributed the court delays to White's litigation strategy and the complex ongoing debate over whether Indian courts have jurisdiction to set aside an arbitral award made outside India. It also argued that, as a developing country, it should not be held to the same standards as, for example, Switzerland, the United States or Australia.

These arguments were rejected. The tribunal found that Article 4(5) of the India-Kuwait BIT was not inconsistent with the provisions in the Australian-Indian BIT. The tribunal did not find the alleged emphasis on national law in the Australian-Indian BIT to be unusual and, as such, could find no reason for the effect of the most favoured nation clause to be limited. The tribunal held that:

The tribunal also noted (in obiter comments) that India's population and the operation of its court systems could have only limited relevance in terms of assessing whether the effective means standard had been breached. The tribunal considered that Article 4(5) in the India-Kuwait BIT was a forward-looking promise by India to provide effective means of enforcing rights and making claims. As such, the focus of the provision is whether the system of laws and institutions work effectively at the time when the investor seeks to enforce its rights or make its claims. (This approach contrasts with the tribunal's reasoning in relation to the "denial of justice" claim, where the nuances of India's legal system were deemed relevant by the tribunal when assessing whether the length of time taken to process the claims was excessive.)

On the facts, the tribunal did not consider the delays in the enforcement proceedings to breach the effective means standard (in part, because White did not appeal the decision to stay the enforcement proceedings). In respect of the jurisdictional claim, however, the tribunal held that White had "done everything that could reasonably be expected of it to have the Supreme Court deal with its appeal in a timely manner". Consequently, although not a denial of justice, it was held that White's nine year jurisdictional claim (including a delay of over five years for the Supreme Court to set a date for the appeal) constituted undue delay, which fell short of the effective means standard.

The award highlights once again the difficulties that investors may face when trying to enforce international arbitral awards in India. While the Indian judiciary is professional and independent, delays in the national court system are endemic, with extended timelines causing considerable difficulties for international parties. The tribunal accepted that the three and a half year enforcement proceedings (before they were stayed) were "less than ideal", but also noted that "India is a developing country with a population of over 1.2 billion people with a seriously overstretched judiciary".

The question of whether an Indian court is able to set aside an arbitral award rendered outside of India is one of the central issues in a consolidated appeal that began in the Supreme Court of India on 10 January 2012. A five judge "constitutional bench" is considering whether, among others, the case of Bhatia was correctly decided. The highly criticised judgments in Bhatia and cases that followed it have been relied on to extend the Indian courts' ability to intervene in international arbitrations.

These cases suggest that Indian courts may exercise their powers under Part 1 of the Indian Arbitration Act, even when the seat is outside India (unless Part 1 is expressly disapplied by the parties). For further discussion, see Legal update, Strengthening the roots of Bhatia International: Part I of Indian Arbitration and Conciliation Act 1996 applied to arbitration held outside India. The tribunal in White v India concluded that the ICC award was enforceable under the laws of India, but did not rule on whether India was in breach of its obligations under the New York Convention for failing to uphold the ICC award.

This is the latest case in a growing trend of international investors using BITs to try to recover sums owed under international arbitral awards. However, such cases depend on the courts accepting that an arbitral award falls within the definition of 'investment' under the respective BIT, which is an issue of some debate. (In White v India, (following Saipem S.p.A v. The People's Republic of Bangladesh) the tribunal held that the ICC award fell within this definition, not as an investment in itself, but as a "crystallisation of White's rights and obligations" under the original contract with Coal India.) The ICC award was therefore a constituent part of White's original investment. This decision may be encouraging to foreign investors who have difficulties enforcing arbitral awards against state entities. However, launching a BIT arbitration is not a quick or easy route to obtaining enforcement of a commercial award and will be an option in only a limited number of cases.

In addition, some states have recently shown signs of wanting to limit investor protections, with Australia announcing last year in a trade policy statement that it will no longer include investor-state dispute resolution procedures in trade agreements with developing countries. Similarly, there are questions over whether India will agree to an arbitration clause in the bilateral trade and investment treaty it is negotiating with the EU after an official from India's department of industrial policy and promotion was reported as saying that "the view worldwide [is] that the state should not get drawn into private disputes".