Investment Treaties and National Governance in India: Rearrangements, Empowerment, and Discipline

This paper presents selected findings on India relating to the effects of international investment agreements (IIAs) on national governance. Our research used ethnography-inspired methods to explore the often-voiced hypothesis that IIAs induce good governance reforms in their state parties. Our findings demonstrate that the good governance hypothesis is too sweeping and lacks subtlety, but they also bring forward new conceptualizations of the impact of the international investment regime on national governance. Our research shows that governance actors use IIAs selectively in order to advance various agendas and interests. The Indian case study shows that rather than acting like a monolith when reacting to the experience of IIAs, the state is instead a site of struggle between different actors with different motivations, agendas and interests. In such context, IIAs produce various formal-institutional as well as ideological-discursive effects that have not been captured by the existing literature. First, IIAs lead to the simultaneous practices of internalization through external adjustment and internalization through accommodation. At the same time, these modes of internalization lead to rearrangements by internalization within the public administration. Second, governance actors resort to various narratives about IIAs, which we present in this paper. Importantly, the deployments of various narratives about IIAs are context-dependent and are used by governance actors tactically as convenient tools in internal political struggles within the public administration. These findings have important consequences for the design and reform of international investment regulation, should such regulation have ambition, as it does, to promote good governance.


Introduction 1
The literature on international investment law often praises the existing international regime for its potential to contribute to the promotion of good governance. In this article, apart from challenging some of the common assumptions about the effects of international investment agreements (IIAs) on national governance, we offer new conceptualisations of the interaction between IIAs and national governance, broadly conceived. Our Indian case study demonstrates how some of the common narratives about the effects of IIAs on national governance in a country from the global South warrant reconsideration.
Conceptually, we first problematize some of the assumptions undergirding the common good governance rationales of IIAs, such as the unitary rational state and public 1 This paper is one of the outputs of a larger comparative project funded by the Swiss National Science Foundation (grant: 10001C_150090). We want to thank Zachary Douglas and Shalini Randeria for initiating this project at the Graduate Institute of International and Development Studies, Geneva. We also want to thank the Centre for International Law at the National University of Singapore, for hosting a workshop discussing our paper (Jansen Calamita, Ayelet Berman, and Dafina Atanasova) and all the workshop participants, too numerous to be named here, for their feedback. We also want to thank the individuals who have engaged with earlier versions of the paper, especially Luna de Araujo, Jonathan Bonnitcha, Anthea Roberts, Florian Hoffmann, and for the research assistance, we thank Debesh Panda. Lastly, we thank the Geneva Center for International Dispute Settlement (CIDS), and RegNet, ANU, for the institutional support. Naturally, for all errors only the authors are to blame. administration. Second, the data generated from our fieldwork show that IIAs have not only formal, legal, and institutional effects. They also produce important ideological and discursive effects. This appreciation allows us to put forward new conceptualisations of modes of internalisation of IIAs, such as internalisation through external adjustment, and internalisation through accommodation, as well as the concept of rearrangement by internalisation which encapsulates the changes triggered by the interaction with IIL.
Third, we also introduce new conceptualisations of IIAs´ functions in the national governance sites based on the analysis of narratives and discourses; such that we show that IIAs may serve as articles of faith, symbolic tokens of economic diplomacy, and unwanted and unfair external disciplines. However, they also work as convenient tools in internal power struggles. Importantly, which mode of internalisation and which narrative of IIAs the various governance actors resort to is highly context-dependent.
Seeming contradictions in governance actors' appreciations of IIAs may be explained when the relational aspects of these contexts are highlighted.
Methodologically, ethnography-inspired qualitative socio-legal methods, as well as interpretative epistemologies have not been widely used to study international investment law and this paper demonstrates the usefulness of such approaches.
The paper proceeds in two parts. We start by explaining the hypotheses, research questions, methodology, and concepts used in this paper, and by situating it within the broader context of empirical and socio-legal literature on IIAs. The next part presents and Forthcoming in Leiden Journal of International Law (version September 2020) 4 analyses the impact of IIAs on governance in two sections. First, concerning its formalinstitutional incarnation. Here, we analyse how the experiences with IIAs impact on relationships between various governmental agencies, and on policies and processes they facilitate through various modes of internalisation. The next section discusses the ideological-discursive effects of IIAs. Here, we analyse how narratives about IIAs have been deployed in various contexts, and how this allows us viewing IIAs as empowering as well as disciplining tools in national governance. The conclusion highlights some normative considerations brought about by our findings.

Investigating IIAs' Impact on Governance: Hypotheses, Research
Questions, Methodology, and Conceptual Framework

Hypotheses and Research Questions
The literature on IIAs often suggests that apart from potentially influencing international investment flows and depoliticising investment disputes, IIAs may have an indirect impact on governance, domestic institutions and decision-making processes. 2 In theory, IIAs may through their substantive obligations induce domestic reform and improve governance processes. 3 This way, it is argued, the impact of IIAs eventually spills-over from the area of governance relating only to foreign investors to the improved governance for all in the host countries (spill-over argument). However, there has been a relative dearth of empirical and socio-legal studies attempting to investigate this claim. Finally, Ranjan's seminal monograph on India and bilateral investment treaties relies on some of the documentary materials we used in our analysis. However, the questions he aims to answer as well as the perspective he adopts differ markedly from ours, as his work focuses more squarely on the analysis of the evolution of the Indian BIT programme, and doctrinal and policy questions, although always well embedded in an analysis of the historical politico-economic context. Importantly, his investigations into governance effects of IIAs are merely tangential. 12 We started from the hypothesis that IIAs indeed have an impact on national governance broadly conceived. Our research, hence, enquired into government decision-makers´ perceptions of and discourses about IIAs and ITA, about formal as well as informal policies, practices, and processes that are put in place as a reaction to IIAs and ITA.
A related hypothesis was that decision-makers' perceptions and actions concerning IIAs are not informed solely by their own assessment of the international investment obligations and the consequences of potential violations, to the extent they are aware of them at all. The public debate over government conduct plays a role in their decisions and 11 Z. Williams, 'Risky Business or Risky Politics: What Explains Investor-State Disputes?', Investment Treaty News (12 August 2014), P. Ranjan, India and Bilateral Investment Treaties: Refusal, Acceptance, Backlash (2019). 12 Ranjan, (2019), supra note 11. Moreover, his work adopts an explicitly value-based assessment which differs from the way we incorporate normative evaluations into our analysis. their decisions' justifications. This means that the media and civil society are presumably playing an important role in this debate. Equally, the position of a particular official within the broader structure of public administration and the intervening power dynamics within that structure would also affect the actions and their justifications.
Our research confirms some of the findings of the existing literature about the limited impact of IIAs on domestic governance. However, it finds that the actual impact of IIAs is more diverse than what the traditional spill-over argument, as well as the regulatorychill argument, portray and this impact needs to be further theorised and conceptualised.

Methodology 13
To assess IIAs' impact on governance, quantitative methods such as surveys do not appear well suited. There is a great potential that the data received in surveys will be limited to platitudes and official positions. Our methodological choices have been influenced mostly by anthropological and ethnographic literature on the effect of international law on domestic settings. 14 Insights from this literature suggest that the use and effects of various international norms within domestic settings have often been ambivalent and cannot be adequately explained by the sole focus either on the international plane or on the state itself. Many other actors and social forces at the national 13 For more details see J. Ostřanský, ´A Case for Ethnography of International Investment Law´, in Deplano, Gentile, Lonardo (eds.), Pluralising international legal scholarship: the promise and perils of non-doctrinal research methods (2019), 64. 14 See above Dezalay, Garth (2005), supra note 3. and international levels play a great role in shaping a state´s policies and governance and determine how governance actors selectively react to international law. 15 Within a wider research project, 16 we used the method of extended case study, 17 which relies mostly on open-ended semi-structured interviews with relevant actors, and discourse and content analysis of both official and unofficial documents, such as government memoranda, press releases, media reports, and the like. 18 We also held a government workshop in Geneva, where representatives from the four select countries exchanged their views on the countries´ experiences with IIAs to make up for the lack of participant observation.
As to the selection of the interview respondents, we started from government officials that have worked in the area of international investment law (IIL) and foreign investment policy. This directed us to the state agencies that deal with either negotiation of investment treaty instruments or with handling the state´s defence in investment treaty  18 The interviews were conducted on-site in India by collaborating researchers Shalini Randeria and Debesh Panda, and in Geneva, to the extent that the relevant respondents were present there (e.g. during the UNCTAD World Investment Forum). Over the course of the project, we conducted interviews with 23 people inside and outside the Indian government.
Affairs. 19 These interviews snowballed into the identification of other actors within and without the public administration. These were in some cases officials at other 'non-IIL' agencies, judges, and in some cases journalists. More often, however, we were referred to external 'experts' on IIAs and arbitration with whom the government officials held close professional ties and who happened to work with the government on IIL-related matters (such as preparation of various internal reports and assessments of ITA-related matters).
Those external experts were often lawyers from private practice working in the area of international dispute settlement and less commonly law professors.
Although the interviews´ content varied depending on the respondent, it generally related to the respondent´s experiences with IIL. We discussed the respondents´ perceptions of IIL, talked about their professional background, personal experiences, histories, and details of their encounters with IIL. We often asked about the interaction between IIL norms on the one hand, and the local practices, policies, norms, expectations, and perceptions, on the other. All of the interviews were conducted on a non-attributed basis, hence we anonymised them when referencing. 20 19 The institutional structures and divisions of competences proved to be an important factor influencing the ways public administrations dealt with IIAs. Many of these divisions were contingent on historical developments and were rarely a result of the engagement with the IIAs regime. However, they also changed over time, taking into account the experiences with the regime. More in Ostřanský, Pérez Aznar, supra note 16. 20 The initials in the references are fictitious to avoid identification. In India, none of the interviewed respondents allowed for the recording of the interview. Hence, all the data were taken, first, from notes taken by the researcher during the interview, and, second, from notes and observations, added ex post immediately after the interview.
The documentary sources were collected through the desk and limited archival research, through direct contact with the relevant actors, researchers' professional contacts, and by means of official requests for information (RTI) according to applicable laws. 21 The nature of the documents was variegated and comprised official government documents as well as non-official documentary materials. 22 The official documents included various reports, memoranda, legislative bills, press releases and the like. In simple terms, we tried to locate any document and text, which would include references to IIAs or ITA.

Limitations of and Clarifications on the Methodology
It is important to emphasise the limitations of our research, as well as to clarify some of its aspects in order to avoid epistemological charges from the perspective of positivist social sciences. As an epistemological note, in our research, we tried to interpret and understand the practices and perceptions of the observed actors, and what meanings they assign to their daily activities when encountering IIL. Our research was less concerned with the notions of replication, causality, validity and representativeness than it was with 21 The questions asked in RTI related to the procedures and competences for negotiating and ratifying IIAs, impacts of IIAs on the economy and governance, cooperation among states agencies, Parliament and external experts, budgetary issues related to satisfaction of arbitration awards, relations between the federal and state entities in IIL-related matters, information on historical and ongoing IIAs disputes, etc. They were addressed (or transferred) to Ministries of Commerce, Finance, Foreign Affairs, Law and Justice, Communications, Coal, and Power. 22 We use the notion of 'official' interchangeably with 'governmental' in common parlance to connote that an individual, institution or document belongs to or originates in the official state apparatuses. the interpretation of the observed processes, practices and utterances. 23 In this sense, we do not deny that we portray a necessarily a partial image -as is, we believe, always the case in social sciences. Yet, we contend that our analysis sheds light on the interaction between IIL and national governance and provides important insights.
Most of the information collected (particularly in the interviews) was retrospective, and as such was not free from 'biases' and potential reactivity. 24 For our purposes, the reactivity was not viewed as an issue. It does not matter whether the justification for the respondent's conduct is added ex-post by virtue of being asked a specific question, as the ex-post justification still provides us with data about the decision-making. More importantly, however, potential 'biases' in responses were not viewed as problematic for our study focused not only on formal and informal processes and practices but equally on the decision-makers' perceptions and on the official and unofficial narratives and discourses about IIL. Potential dissonances and contradictions between perceptions and narratives, on the one hand, and the actual conduct, practice and policy, on the other, were themselves taken as data and therefore they have a productive use.
Similarly, as with the potential 'biases', we had to acknowledge that the typical positivist dividing line between the researcher (outside) and the field (inside) does not find its place in our framework, as the researcher is simultaneously positioned inside and outside. 25 As our methods and theoretical outlook were contextual, dynamic and reflexive, we intentionally did not attempt to 'silence' certain information, which may have initially appeared irrelevant. Apart from our main hypotheses, we did not intend to limit our enquiry by upfront definitions, such as a definition of good governance. Nevertheless, we established at the outset themes and directions in which we inductively moved our research and modified them as we went forward. The research questions and hypotheses were, in a sense, only guidance to influence our thinking about the research topic. 26 They were not there to make us 'enslaved by a theoretical straightjacket'. 27 The next section introduces the conceptual framework we used to make sense of the collected data, and which allowed us to shed light on the material and discursive reality of the interaction between IIL and national governance in India. 25 By 'inside', we essentially mean being 'experts' on international investment law, in the sense of understanding the technical language, debates and stakes in the field. None of the authors has ever worked with or for the Indian government in any capacity. More detail in Ostřanský (2019), supra note 13. 26 Flood, supra note 23, at 34.

IIL's formal-institutional and ideological-discursive effects
The majority of the literature on the spill-over effects focuses on formal, legal, and institutional effects: changes in laws, regulations, competences, and legal processes -we pile these effects under the heading formal-institutional. From this perspective, one may assume, for instance, that when a disagreement between various government agencies as to the implementation of IIAs does not have a tangible result in law, policy, procedural and institutional change, there are no significant consequences for governance. This type of perspective, however, understands governance effects in a very narrow way. Other kinds of governance effects that IIL may potentially have are therefore not captured by this perspective. To cast the net of our analysis wider, we must think about IIL in different ways.
While we acknowledge the effects we describe as formal-institutional, there are also ideological, discursive, and interpellation effects of IIL. 28 If we understand IIL as an ideological and discursive mechanism -i.e. shaping actors' ideas as to what is right and wrong, legitimate and illegitimate, possible and impossible, normatively superior, etc. 29and, drawing on Foucault, as a mechanism of interpellation -i.e. a mechanism which 28 On various theories of law's effectivities, especially the ideological and interpellation theories see A. through various processes and practices train actors to adopt a certain style of comportment, self-expression, and being-in-the-world 30 -we can appreciate IIL's effects beyond those that translate into black-letter law and policies. Understood this way, IIL frames the actors' normative ideals as well as their ways of 'doing governance'.
There are all kinds of effects (governance effectivities) of IIL, and to close up those that do not translate into formal reforms as creating no consequences for governance is a contention we want to oppose. Our perspective 'seeks to discern and decipher the myriad of ways in which the [IIL] operates in everyday life of states, societies, and people across the globe,' 31 and thus reframe governance in light of concrete circumstances.

Governance Effects and Governance Sites
Understanding IIL not only as a formal institutional but also as an ideological, discursive, and interpellation mechanism has consequence for the research design. In our research, we aimed at documenting, analysing and explaining how IIL interacts with governance sites in the studied countries. This presupposes some notions of the sites and layers of social praxis affected by IIL.
We initiated our research with a presumption that these sites are multiple and not limited to the governmental institutions, but are also found in the media and academic discourse, NGOs' activities, business, investors, and international organisations' activities. At these sites, the 'international', represented by IIL and its accompanying globalising discourses, is transformed, filtered, and mixed with local and national meanings. Our research is informed by the notion of multi-sitedness, 32 as it looks at how abstract and large-scale systems, norms, and discourses are received at and interact with various local sites.
The idea that governance is a set of processes, practices as well as their effects cannot lead immediately to the conclusion that they obtain only within the apparatus and institutional structure of governments. 33 Our project design started with a focus on the official governmental apparatus and the media discourse about IIAs. As the research progressed, we received indicia which would lead us to pursue paths to other sites where governance may obtain, such as law firms, investors, and international organisations. When faced with a dilemma as to the extent to which we should follow these indicia, we stayed at the level of official sites and a limited investigation into the interaction between official sites, on the one hand, and law firms, media and NGOs, on the other. 34 Due to space limitations, in this article, our focus is limited to the official, state governance sites.

Tracing the Impact of an 'IIL-Argument'
When analysing how IIL influences the more formal aspects of national governance, such as laws, regulation and governmental policies, we tried to trace the route of what we called 'an IIL-argument'. An IIL-argument is essentially a text which travels through various agencies and sites and is mediated, transformed, and repurposed through the interaction with various actors. 36 For instance, an IIL-argument may originate as a treaty which finds its way into the legislative process based on an experience of ITA, which relays information about the potential consequences of the treaty violation. If such information is retained within the administration, the treaty may find its way into a governmental memorandum in support of or against a legislative bill; or yet, may form a basis for the establishment of a new policy or practice of reviewing legislative proposals.
Another example is a way an investment award may enter the public discourse.
Government officials may instrumentally use the result of arbitration in a campaign against the opposition. A lost arbitration, a negative occurrence for the government, at first sight, may thus turn into a tactical tool against political opponents. effects. 37 This perspective allows seeing beyond the formal manifestations of governance that are at the heart of most discussions about the impact of IIL on good governance. It allows us to see how even actors without formal decision-making power, and even outside the public administration altogether, may influence governance with the aid of IIL.

Narrativisation of IIL: Conflicts and Contradictions
In this paper, we identify various narratives which government officials tell to themselves This approach allows us, first, to construe the governance actors´ ideational worlds based on the actors' experiences with IIL and their interactions with it. Second, by extracting the general from the particular, while bearing in mind the relevant contexts, allows revealing and understanding conflicts and contradictions that are not necessarily evident if the contexts are not taken into account, and when the research design filters out contradictory or partial utterances as instances of ad hoc anecdotes or irrelevant data.
Our research reveals that various actors often hold contradictory views and utter contradictory statements about IIL depending on the context. These contradictions may be unwitting but are often also tactical. By this, we mean that different actors may at times resort to different appreciations, portraits and narratives of and about IIL in order to put forward various agendas or simply to manoeuvre through a particular situation. 38 For the very same actors, IIL thus may be viewed as a constraining force externally imposed in one context, while in another context it may be perceived as a useful tool in various struggles.
While focusing on narratives, contradictions and contexts, we are getting a fuller picture as to the interaction between national governance and IIL. This perspective brings into relief novel and hitherto unexplored realities of IIL and reveal a side of IIL that is generally 38 We wish to thank Luna de Araujo for bringing our attention to the concept of 'manoeuvring'. See L. de Araujo, '"I am not an Accountant, but I Have to Control Everything": The Embeddedness of Chronic Healthcare in Paperwork' (forthcoming) (on file with authors). obscured in the conventional accounts. In other words, this approach allows us to see how IIAs contribute to mediating and negotiating different power relations within the national governance sphere. This way, IIAs influence the governance structures, hierarchies, relations, and processes through different modes of internalisation, which this type of analysis allows us to reveal and further conceptualise.

IIAs´ Impact on Governance in India
In this part, we apply our conceptual framework to analyse the IIL's impact on national governance in India. First, we briefly summarise important historical events that shaped approaches to IIL in India. This allows us to better contextualise the findings presented afterwards. Second, we present the formal-institutional effects of IIL, which in India we identified mostly concerning its treaty programme and regarding the relationships between various government agencies and institutions. We also discuss the limited instances of dispute prevention policies and practices. Thirdly, we present IIL's ideological-discursive effects. These relate chiefly to the often-contradictory narratives about IIAs, their purposes and perceived effects.

First Period of Negotiations of IIAs
India started to negotiate IIAs in the 1990s.    56 Interview with A.E., private practitioner involved in investment disputes as counsel for India (2016). 57 Analysing the IIAs signed by both India and Singapore immediately prior and after the India-Singapore CECA, Art. 6.5 of CECA includes a provision on expropriation relating to land, which shall be governed by domestic legislation. Such provision is not commonly found in the provisions on expropriation in IIAs of the two states. 58 Interview with R.N. (2015). Interestingly, as late as in 2011, an internal paper by Department of Industrial Policy and Promotion, Ministry of Commerce, acknowledged that it does not know the amount for which the cases had been settled ('International Investment Agreements between India and Other Countries', p. 16, on file with authors). One respondent mentioned that India has a 'conciliatory culture.' As opposed to the 'Western, more "process-based culture", the Indian culture is more "relationship-based."' Interview with R.A., private practitioner counselling India on IIA-matters (2015). Another respondent quipped that 'if it were politically expedient, the government would settle all disputes.' Interview with A.E. (2016).
Compared to a relative silence in the public discussion on the topic of IIAs until 2010, 59 discussions in the media, as well as interactions with other government institutions, have become much more frequent thereafter, as a result of the White Industries arbitration.  66 There have also been claims involving measures adopted by Indian states and subdivisions. 67

Formal-Institutional Impacts of IIL: Law, Policy, and Inter-Agency Relationships
In India, the formal-institutional effects of IIL we demonstrate in relation to the Indian investment treaty programme, the relationships between various state agencies, and limited dispute prevention processes and mechanisms.

Relationships between Government Agencies
In  The Commerce has favoured regional trade agreements and wanted to terminate BITs, 80 which the Finance has historically opposed. 81 Furthermore, tensions between DIPP and DEA were observed regarding the views on the future of IIAs, the content of treaty provisions, 82 on how to deal with disputes initiated by investors, 83 but also on the 78 It has been noted that there is no uniform practice on handling the disputes. In theory, the notices should be sent to DEA, but often arrive at different agencies. After DEA receives them, it convenes an Inter-  respondents noted, in particular, the lack of expertise inside the government when the disputes arose; 'they had nobody to turn to domestically for advice, lawyers abroad charge too much and it becomes difficult to justify it internally.' 96 Some respondents claimed that the L&T, especially, lacks the necessary in-house expertise, and due to the competition issues with other governmental agencies, it was actively getting in the way of appointing competent legal counsel. 97 At the same time, interviews with officials from L&T did not suggest that the officials would significantly lack understanding and knowledge of IIL.

Federation-State Relationships
IIL has impacted also the relations between the central government and individual states.
As noted above, there have been cases involving measures by Indian subdivisions and individual states. 98 Investment disputes of this type sometimes reflect political differences between different political levels. 99 It was even argued that sometimes local governments decide to act arbitrarily, as they know it will be the central government which will have to deal with the fallout. 100   not mentioning the Ministry of Commerce, with which Finance has had a long history of competition over the IIAs agenda.

Internalisation through (External) Adjustment and (Internal) Accommodation
The above analysis allows conceptualising of the formal-institutional interaction between IIL and governance in more abstract terms. One way of looking at the modifications in the Indian IIAs programme is that it represents a more general approach to the IIL internalisation in India, which we call internalisation through external adjustment.
Internalisation through external adjustment means that the Indian government and public administration´s experiences with IIAs are translated mostly into the action regarding external relations, i.e. the Indian treaty programme, instead of into attempts to internalise the experience by accommodating the domestic parameters, policies and processes. The latter would be an instance of what we call internalisation through internal accommodation, and a typical example would be a setting up of a review mechanism at the level of the legislative process. 114 Generally, a state will resort to the combination of the two modes of internalisation, while the prevalence of one over the other will be a question of degree. 115 The Indian reaction was to modify its model BIT, undergo a review of the current stock of IIAs, attempt to directly include provisions in the IIAs to the effect of removing the 114 See van Harten, Scott, supra note 7. Note that the motivation of these moves may be treaty compliance just as international review avoidance. 115 Ostřanský, Pérez Aznar, supra note 16. measures that had been the object of investment claims in the past, and terminate many of its IIAs.
With these concepts, we are not expressing a judgement about the motivations of the relevant actors to pursue this path of internalisation. What we want to stress is that the interaction between national governance and an international law regime, such as IIL, generally translates into governance effects going, often simultaneously, in two directions: the international and the national. As internalisation through external adjustment requires a significant mobilisation among the relevant governance actors (just as internalisation through internal accommodation does), it is inevitable that even these acts trigger internal rearrangements, as is demonstrated by the Indian case study. These effects are more properly understood as rearrangement by internalisation.

Rearrangement by Internalisation
In the previous section, we argued that a state will usually resort to both internal and external modes of internalisation, although in various manifestations and degrees.
Regardless of the motivations of the actors that materialised particular policies, external adjustments just as internal accommodations will generally be purposeful acts.
Governance actors will resort to them to achieve a particular goal, policy or state of affairs. Now, regardless of how a state resorts to external or internal modes of internalisation, we contend that each case of purposeful engagement with an international regime is always accompanied by rearrangements within the national governance sphere. These can be materialised in rearrangements of legal competences among various state agencies, creation of new agencies, and, at a more fluid, less material even though no less real and powerful level, in the creation of new narratives, ideational frameworks, and subjectivities.
Thus, while it is useful to map the engagement with IIL through the modes of internalisation along the somewhat stylised axis between external and internal to assess the orientation of the state (e.g. more inward-looking versus more globalising; more rulemaking versus more rule-taking; more accommodating versus more experimenting), this perspective is essentially about how a state and its governance actors position the state vis-à-vis international law and a particular international law regime. values and discourses get traction and which get suppressed. From this perspective, the international -be it a treaty, stylised international law regime, or arbitration award -may become an actor itself just as it may become a tool in the complex governance reality of a particular state. 116 From this perspective, the realm of IIL internalisation appears as terrain 116 Here, we are drawing on Bruno Latour and his Actor-Network-Theory (ANT), which perceives also nonhuman objects as actors ('actants') as long as they are a source of action. Except for this section, when we refer to actors in this paper, we refer to human or institutional actors. See e.g. Latour, Reassembling the Social: An Introduction to Actor-Network-Theory (2005).
perceptions and contexts, and how they are attended by contradictions. This analysis allows putting into relief the variegated performative functions of IIL's narratives. To be clear, we are not suggesting that IIAs influence perceptions and these perceptions, in turn, influence policy, processes and practices, as if in a linear two-step process. They are better viewed as different facets and dimensions of the interaction between IIAs and the national governance sphere. 118 We submit that narratives about and normative evaluations of IIAs by various actors discursively frame their range of action, their policies, processes and practices. But the discursive frameworks are not static and linear, instead, they are contextual and relational. What is more, they are also tinted by the actors' agendas and the issues at hand. Thus, the same actors may deploy different narratives depending on to whom they speak and what they aim to achieve. It is, therefore, more appropriate to conceive of IIAs' discursive and ideological effects manifested in narratives as operating alongside their formal-institutional effects expressed in laws, policies, and processes.

Official Narratives Related to IIAs and Their Purposes: Benign Instruments, Articles of Faith, and Unwanted Disciplines
Although the enquiry into the reasons for entering into IIAs was not our primary objective, we by necessity mapped the narratives about the rationales behind the Indian treaty programme. Also, although the Indian IIAs programme began in the early 1990s 118 See above 1.4.1.
with the purposes pertaining to that period, 119 the earlier narratives of what IIAs are for and about have been deployed regularly until the present day in the interactions between various governance actors. This means not only that the narratives themselves can be modified but also that they may be repurposed for different contexts.
The narrative as to the main purpose of IIAs that has emerged over and over again was investment flows. 123 Some press releases go even as far as postulating that the agreement 'will increase investment flows' between the contracting states. 124 These findings confirm the previous studies finding that governments wishing to attract foreign investment are likely to enter into international agreements which they believe will achieve this purpose. 125 The idea that IIAs may indeed be an article of faith is supported by further data pointing in the same direction. The information received through applications filed under the 2005 Right to Information (´RTI´) Act confirmed that the government has never conducted an empirical study to prove whether the empirical claim of IIAs attracting foreign investment is valid, and it has never commissioned an external entity to conduct such a study. 126 This has been confirmed by some respondents. 127  Asking specifically about the early IIAs programme, the officials and other respondents stressed that IIAs were a result of a package of 1991 economic reforms adopted in order to liberalise the Indian economy. 129 These reforms mirrored policies proposed by the IMF and World Bank, 130 as well as they were aligned with the global trends in economic policymaking at that time. 131 This suggests that the Indian government actors were not the source of the main narratives about the purposes. Academic advisors privy to the government economic reform activities of the early 1990s suggested that IIAs were viewed as a 'natural formal aspect of the continuing international economic cooperation with foreign nations, a sort of marriage certificate.' 132 Other respondents also stressed the symbolic role of IIAs in economic diplomacy. 133 The latter view of IIAs as somewhat benign legal tools is in line with the later adopted BIT policy, which argues that e.g. taxation is ( The historically pronounced purpose of attracting foreign investment, which is still used by ministries as the main purpose in communications with domestic constituencies, such as the Parliament, has recently changed in the communications directed to international fora, such as UNCTAD. In the latter settings, the government seems to hold that the sole purpose is (i) to protect the foreign investor and (ii) to preserve the regulatory powers of the state. 138 Strikingly, one such document goes as far as stating that IIAs is ´not an instrument for investment 138 Sarkar, supra note 121, at para. 52; Law Commission Report, supra note 62, at para. 1.8; Ministry of Finance, ´Transforming the International Investment Agreement Regime', supra note 40, at 7. promotion as little evidence linking IIAs to increase in FDI.´1 39 This contradictory stance raises many questions. If the promotion of foreign investment is not the main goal, why has the government repeatedly communicated that this is indeed the chief rationale for IIAs domestically? If the goal is solely to protect foreign investors, what is the normative rationale behind giving this protection to foreigners, if it is not the investment promotion?
Why India has to boost investors' confidence if it is not about investment promotion?

Contradictions in the Official Narratives: Contextual Repurposing
While the previous section identified the main official historical rationales behind the Indian IIAs programme, the lack of empirical backing for the main rationales in the hands of the main governance actors, and the evolution of the rationales, this section evaluates specific deployments of these narratives attending to their contexts and contradictions in greater detail.
When one moves away from the official narratives to the actual perceptions of individual governance actors, the image gets more nuanced. Some respondents openly questioned whether IIAs have potential to attract foreign investments. 140 Some recent events also cast some shadow over the official narrative. The 2013 BIT between UAE and India was concluded during the government moratorium on new IIAs pending the review. Some interview respondents opined that this happened in order to facilitate a specific dealthat is, the Jet-Etihad airlines merger. 141 This event shows that despite the ostensible IIAs review and moratorium, the government is willing to make exceptions and compromises if it perceives such action as potentially beneficial and expedient. It also shows that the governance actors are willing to make important deviations from its publicly stated positions if it concerns negotiations for foreign capital.
In the context of the central government´s accountability for potential domestic repercussions, the central government downplays the possible risks that IIAs may bring along, despite clearly being aware of them. 142 Despite the fact it has identified the discontent with some of the IIAs regime´s features, such as broad arbitral interpretations, as the cause for the overhaul of its treaty programme. 143 In November 2014 (i.e. in a period after the White Industries award, when the country was facing six new treaty disputes, and the BIT moratorium and review were effective), the Minister of Commerce was asked by an MP in Rajay Sabha, about the specific benefits of BIPAs. The Minister answered: Year-wise and sector-wise details of the benefits/impact of BIPAs in the last 10 years are not available as these are primarily legal agreements aimed in protecting foreign investments in the post-establishment phase. BIPAs have been instrumental in creating a stable legal regime for espousal of claims of foreign investors as per international law. BIPAs have been also critical in generating investor outlook and confidence in the Indian legal and regulatory system. 144 While admitting that there is no data, the Minister makes unqualified empirical statements in the second part of her response. Presumably, this downplaying of the lack of data is possible, because BIPAs 'are primarily legal agreements.' As if legal instruments do not have any policy and instrumental role and consequences; as if they are indeed benign. In the next sentence, however, she makes precisely such statement about their instrumental role. Even more interestingly, the Minister makes a further extrapolation by linking the fact that IIAs allow foreign investors to bring their claims to investment arbitration under international law (i.e. effectively escaping the domestic legal regime and its remedies) to the presumption that this leads to increased investor confidence in 'Indian legal and regulatory system,' the impact of which IIAs aim to minimize. However, both Ministries were involved in the review of the country´s IIAs stock and argued in the joint documents that IIAs unduly restrict the sovereign power to tax and inadequately take into account Indian socio-economic realities, among other things. 149 What is more, the Indian executive views foreign investors as using the IIAs to unjustly put more pressure on the government to negotiate a settlement. 150 It seems that the main governmental agencies dealing with IIL are aware of the lack of empirical basis for the main rationale for IIAs, as they are aware of the problems which IIAs may cause in terms of investment disputes. Still, they do not shy away from selective blaming of IIAs or downplaying their risks depending on the context. While one can view this state of affairs as a lack of expertise, coordination, consistency and organisation within public administration, 151 it is nevertheless equally possible to remove the parochial undertones tinted by the ideal(ised) types of 'good (Western) governance' juxtaposed against the 'backwards' or 'underdeveloped' governance and focus instead on the actual use of IIAs narratives as tools for empowerment, struggle and discipline.

IIAs as Empowering and Disciplining Tools
After taking stock of the actual deployments of IIAs narratives, we must put in question the conventional frames of IIAs' effects on domestic governance as either goodgovernance-inducing or regulatory-chill-inducing, by showing their sweeping and indiscriminate nature. Rather, our analysis showed that the landscape of national governance is a variegated site of struggle, manoeuvres and negotiations between different actors who pursue different agendas and interests and are endowed with different resources. From this perspective, IIAs are used by these actors to empower themselves under certain circumstances, but in other circumstances and contexts, IIAs will constrain and limit those same actors.
Over time, we may observe that IIAs-related agenda leads to (i) struggles over the agenda, and (ii) eventual empowerment of certain governmental actors. Instead of viewing the instances discussed in the previous sections as examples of ignorance or a lack of expertise, we contend that the contradictory perceptions and uses of IIA-related arguments are tactical and serve as empowering tools. This empowerment is not only horizontal, among different agencies of the executive and the parliament, but also vertical, between the central government and individual states, provinces, municipalities.
Ministers´ responses to the parliamentary queries discussed above show that the Ministers frame their responses to shield themselves from a critique from the legislative arm of the state. If successful, such tactical responses may provide them larger room for manoeuvring in the IIAs-related agenda, and potentially also elsewhere. The same goes for the propositions of various recommendations to ameliorate the extant state of affairs. 152 While it may be true that officials at the Ministry of Commerce, Finance or elsewhere lack the technical expertise in IIL possessed (and measured) by those who deal with investment disputes as their bread and butter in globalised law hubs, while they may be aware of the lack of empirical evidence to back their claims, they understand well the context within which they have to solve the IIL-related matters. They may, therefore, deploy narratives about IIL and portraits of IIAs which they expect will facilitate achieving their broader goals. In this sense, just as IIAs may constrain them, they may empower them vis-à-vis other governance actors. It may matter little for a ministerial bureaucrat answering to a parliamentarian, or communicating with a bureaucrat from a state municipality that their claims about IIL are inaccurate or exaggerated, as long as they help them to deal with the issue at hand. Even better, as long as they facilitate promotion of their institutional or personal competence, agenda, or interest. In other words, governance actors negotiate and manoeuvre the constraints posed by IIAs on a regular basis and in certain contexts they may find IIAs empowering. This perspective allows us empathetically recognize coherence in the actions that may be criticised from 152 See supra note 113 where the Minister of Finance proposes the establishment of an inter-ministerial committee without representatives from the Ministry of Commerce. the perspective of an idealised type of 'good governance' which is being promoted by the mainstream literature on the spill-over effect of IIAs.

Conclusion
The argument that IIAs have an effect on governance broadly conceived is hard to deny.
Yes, various governance actors do react to their experience with IIAs. Yet, the conventional spill-over argument, as well as its regulatory chill counterpart, are insufficiently nuanced. They assume that that states act to accommodate the requirements of international legal regimes, generally with a view of avoiding liability. And they assume that the states and their agencies will act in a consistent and concerted way, weighing pros and cons, to set up adequate modalities of internalisation (rational choice theory). The reality of the public administration in India, and likely in most if not all countries, is far from this theoretical model. It is much messier. At the same time, various governance actors cannot be said as acting irrationally when they do not act according to the model of the conventional spill-over argument. Their actions and utterances make sense from a relational and contextual perspective.
The spill-over argument so often voiced in investment law literature is essentially a normative argument based on the premise that states acting to prevent liability under IIAs are necessarily improving the rule of law adherence and good governance. Again, our analysis of the Indian case study demonstrates this argument too is excessively sweeping and lacks subtlety. Our research shows that important actors' actions towards avoiding liability or otherwise do not necessarily lead to internalisation through accommodation of IIL obligations, but also to internalisation through external adjustment focused on IIL itself.
At the same time, this move (just as the accommodation move) is often accompanied by rearrangements within the governance sphere, through which various actors struggle and negotiate for power, using IIAs as a proxy.
From the perspective of ideological and discursive effects, governance actors may use IIAs for their own empowerment even though they may at other times feel constrained by them (IIAs as empowering and disciplining tools). Finally, governance actors act differently depending on the context in which they act, and the addressee of their conduct and communication. IIAs are thus used selectively by government actors to manoeuvre daily tasks and advance different agendas and interests (e.g. the dealing with sub-national governments, dealings among different central government actors, dealing with domestic as opposed to international constituencies). This is in line with previous ethnographical research on the selective uses of international tools by domestic actors. 153 In the context of IIAs, these treaties seem to operate once as articles of faith and symbolic tokens of economic diplomacy, at other times as convenient tools in internal political struggles within the public administration, yet at other times as unwanted and unfair disciplines and constraints on national decision-making.
IIL scholarship should take seriously the fact that the state is a site of struggle between different actors and fractions with different motivations, agendas, resources, and interests. IIAs create repercussions at the national level which influence governance writ large. However, to claim that these effects are the rule of law and good governance inducive, notwithstanding the essentially contestable nature of the two terms, is a step too far. Rather, it should be recognized as essentially IIL-legitimizing normative claim.
States can certainly do more to centralise competences and strengthen expertise in certain governmental agencies and give them more say in regulatory decision-making, with the view of securing compliance. Whether such centralisation is to be welcomed from a normative perspective is a different question. Should governments tilt their economic and social policies towards compliance with tools of international economic governance by further empowering already powerful agencies and emboldening already hegemonic discourses, instead of creating policies and practices responsive to local concerns and global challenges? Whether building more in-house domain expertise is worth developing countries' precious resources is an equally important political question to ask.
Comparative assessment of the Indian experience with other countries within our research project to be published in the near future will provide a fuller picture and will answer some of these questions.