India’s Emerging Digital Competition Law and Possible Investment-Treaty Claims by Big Tech Firms

Abstract

This article examines how India’s draft Digital Competition Bill (DCB), read alongside India’s investment treaty landscape, can create a fresh layer of regulatory uncertainty for large technology investors. It explains why the DCB is being positioned as a distinct instrument, rather than a subset of the proposed Digital India Act or the Digital Personal Data Protection Act and identifies an early friction point: an ex-ante competition design, built around data portability and continuing access, can sit uneasily with a consent-based privacy framework. The analysis then places the DCB within the policy arc that followed the Standing Committee of Finance report and the Committee on Digital Competition Law deliberations. It asks whether India’s ersatz adaptation of the European’s framework employing the spaghetti bowl effect as a framing device. The article maps the most plausible investment treaty claim pathways if the DCB comes into force, including FET arguments tied to legitimate expectations and transparency, and indirect expropriation concerns linked to operational control over data and platform conduct, as well as, Section 38 and its exemption power, and its implications on equal treatment debates and carve out risks. The article concludes that The DCB’s objectives and boundaries need sharper articulation, and the more durable response lies in clearer right to regulate language and disciplined carve outs.