Manmohan, J.

1. Present matter raises important and interesting issues of law with regard to Bilateral Investment Protection Agreement. In fact, in recent years there has been rapid increase in bilateral investment treaty arbitrations, but there is limited authority on the jurisdiction and approach of National Courts or on the nature of arbitrations under such treaties.

2. It is pertinent to mention that present suit has been filed by the Plaintiff-Union of India against Vodafone Group Plc (‘VG’), i.e., Defendant No.1 and Vodafone Consolidated Holdings Ltd (‘VCHL’), i.e., Defendant No.2 (hereinafter referred to as ‘Defendants”) seeking reliefs of declaration and permanent injunction. The prayers sought in the present suit are reproduced hereinbelow:-

"(a) Declare that notice of dispute dated 15.06.2015 and the notice of arbitration dated 24.01.2017 issued to the Plaintiff by the Defendant and the proceedings initiated by Defendant Nos. 1 and 2 in furtherance of the said notice of dispute dated 15.06.2015 and the notice of arbitration dated 24.01.2017 under India UK Bilateral Investment Protection Agreement are an abuse of process and null and void;

(b) pass a decree of permanent injunction in favour of the plaintiff and against Defendant Nos. 1 and 2 restraining the defendants, their servants, agents, attorneys, assigns from taking any action in furtherance of the notice of dispute dated 15.06.2015 and the notice of arbitration dated 24.01.2017 and from initiating arbitration proceedings under India-UK Bilateral Investment Protection Agreement or continuing with it as regards the dispute mentioned by the Defendants in the Notice of Arbitration dated 24.01.2017.

(c) Award costs of the suit in favour of the Plaintiff and against the Defendants;

(d) Pass such other and further order(s) and/or direction(s) as may be deemed fit and proper in the facts and circumstances of the case."

3. On 09th January, 2018, the learned senior counsel for the parties stated that they did not wish to lead any evidence in the present case. Thereafter, at the request of the learned senior counsel for the parties, the matter was heard finally on the paper book and after treating all the documents filed by the parties as admitted documents.

4. Since the Defendants were objecting the jurisdiction of this Court to hear the present suit, they were asked to commence the arguments.

SUBMISSIONS OF MR. HARISH SALVE, SENIOR COUNSEL FOR DEFENDANTS-VODAFONE GROUP

5. At the outset, Mr. Harish Salve, learned senior counsel for Defendants clarified that the Defendants did not, by their appearance in Court, accede to the jurisdiction of Indian Courts generally or this Court in particular, and had entered appearance without prejudice to their rights and contentions.

6. He submitted that the National Courts of India inherently lacked the jurisdiction to entertain any dispute arising out of a Treaty between two sovereign countries. He stated that the Union of India was a party to the Bilateral Investment Protection Agreement (hereinafter referred to as ‘BIPA’), a Treaty between two sovereign governments (the Government of the United Kingdom of Great Britain and Northern Ireland & the Union of India), and the obligations under such treaties were not subject to domestic laws and disputes arising out of such treaties were not subject to the jurisdiction of the National Courts. He emphasised that the Courts could not interpret and/or enforce the provisions of Bilateral Investment Treaties as the law made such issues non-justiciable.

7. He emphasised that the Divisional Court of the Queen's Bench Division in The Campaign for Nuclear Disarmament v. The Prime Minister of the United Kingdom, [2002] EWHC 2777 (Admin) has held, "ordinarily speaking, English Courts will not rule upon the true meaning and effect of international instruments which apply only at the level of international law...."

8. He also pointed out that the interplay of the jurisdiction of National Courts and inter