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investor-state disputes | ISDS

Investor-state dispute settlement (ISDS) refers to a way of handling conflicts under international investment agreements whereby companies from one party are allowed to sue the government of another party. This means they can file a complaint and seek compensation for damages. Many BITs and investment chapters of FTAs allow for this if the investor’s expectation of a profit has been negatively affected by some action that the host government took, such as changing a policy. The dispute is normally handled not in a public court but through a private abritration panel. The usual venues where these proceedings take place are the International Centre for Settlement of Investment Disputes (World Bank), the International Chamber of Commerce, the United Nations Commission on International Trade Law or the International Court of Justice.

ISDS is a hot topic right now because it is being challenged very strongly by concerned citizens in the context of the EU-US TTIP negotiations, the TransPacific Partnership talks and the CETA deal between Canada and the EU.

Venezuela claims ICSID arbitration victory over Panama’s OPIC Karimun Oil Company
30-May-2013 Latin American Herald Tribune
Venezuela reported a triumph at the World Bank’s International Center for the Settlement of Investment Disputes in a case brought by Panama’s OPIC Karimun Corporation on compensation for losses it sustained when Venezuela nationalized oil fields in 2007.
South American Silver lands international arbitration funding agreement
28-May-2013 Mining Weekly
Vancouver-based South American Silver (SAS), which early in May filed for arbitration against the Bolivian government over the cancellation of mineral tenements in 2012, has entered into a privileged arbitration funding agreement with an international investment fund specialising in such proceedings.
Coup d’etat to trade seen in billionaire toxic lead fight
28-May-2013 Bloomberg
Most of La Oroya’s children suffer elevated lead levels, according to the Peruvian government. Parents say some have symptoms — consistent with lead poisoning — that include anemia, convulsions, stunted growth, mental retardation.
Unfair, unsustainable, and under the radar
26-May-2013 Democracy Center
A new paper from the Democracy Center sheds an urgent public light on the system of international investment rules and arbitration tribunals that is being used by corporations to undermine citizen and government action on a range of urgent social and environmental issues.
Consumers International releases three new papers on the TPP for the Lima round
20-May-2013
Consumers International (CI) has commissioned the production of three papers, the first on the competition chapter by one of our members, and the other two by independent experts, respectively covering the investment chapter and how it affects A2K, and the free flow of information provision and its impacts on privacy.
Reko Diq finally abandoned by Canadians, TCC
10-May-2013
Tethyan Copper Company (TCC), a joint venture between Canada’s Barrick Gold and Chilean miner Antofagasta, has given up hope of eventually mining Reko Diq, a disputed but promising copper-gold project in Pakistan’s poorest region, Reuters news agency reported on Wednesday.
Treaty-based disputes between investors, states on the rise, says Unctad
7-May-2013
Dispute settlements between investors and states saw 62 new cases initiated last year, the highest number of known treaty-based disputes filed in a year, according to a report by the United Nations Conference on Trade and Development (Unctad) in March.
Bilateral investment pacts can’t be subject to foreign jurisdictions: FM
18-Apr-2013 First Post
India’s Finance Minister P Chidambaram has made it clear that any bilateral investment protection agreement has to be subject to jurisdiction of domestic legal institutions and India will not allow it to be subjected to foreign courts or tribunals.
Treaty-based disputes between investors, states on the rise, says Unctad
18-Apr-2013 Business Day
Dispute settlements between investors and states saw 62 new cases initiated last year, the highest number of known treaty-based disputes filed in a year, according to a report by the United Nations Conference on Trade and Development (Unctad)
BIT claim brought against Turkmenistan following UN finding of human rights violations
15-Apr-2013 Lexology
Following a decision of the United Nations Human Rights Committee (“UNHRC“) in 2010 that a Turkish businessman had suffered violations of his human rights after being illegally convicted of economic crimes, a claim for compensation is now being pursued under the Turkey-Turkmenistan bilateral investment treaty (“BIT“). This case therefore highlights the interesting interaction between the human rights and investment protection regimes.
A Bolivian nationalisation too far? Rurelec gets its day in court
3-Apr-2013 Financial Times
How did UK-based power company Rurelec manage to get Bolivia to go to the Permanent Court of Arbitration in The Hague over the nationalisation of the assets of its local subsidiary, Guaracachi, almost three years ago?
See you in court: Russians may sue over Cyprus losses
27-Mar-2013 Reuters
Russian businesses and banks that face losses from the European Union’s bailout of Cyprus are considering legal action but may have a hard time making a case, say lawyers who are combing through treaties find strategies to recover funds.
How NAFTA, FIPA and other investment deals put democracy and the environment at risk
27-Mar-2013 Canadians.org
A US-funded energy firm, Lone Pine Resources, is using investor rights provisions in the North American Free Trade Agreement (NAFTA) to challenge Quebec’s 2011 moratorium on hydraulic fracturing for natural gas.
Multinational firms look for tax shields in bilateral pacts
19-Mar-2013 Live Mint
The aggressive push by India’s tax department to increase revenue has prompted several multinational companies to informally seek the views of lawyers and consultants about invoking bilateral investment promotion and protection agreements to resist the government’s demands for more money.
Cargill settles NAFTA dispute with Mexico
22-Feb-2013 Reuters
Cargill has reached a settlement with Mexico in a dispute that resulted in a $77 million arbitration award for the US agribusiness company
Reko Diq saga: Balochistan wins again
20-Feb-2013
Amidst continuing violence plaguing Balochistan, there is now a cause of joy for the Baloch people and the government.
Investors running wild on land: the threats posed by international investment agreements
20-Feb-2013 Traidcraft
A recent briefing note by Traidcraft discusses the threats posed by current regulation of foreign investment in land highlighting that food security and other human rights concerns often come at the cost of excessive protection of foreign investors’ rights.
Plain packaging for cigarettes a legal minefield
18-Feb-2013
Lawsuits are seen as the inevitable next step if plain packaging of cigarettes is brought in. The government will announce a decision on the matter in the next few days.
CETA Investor-State Dispute Settlement process “anti-democratic, unnecessary and unfair,” says NFU
16-Feb-2013 National Farmers Union
The National Farmers Union is among the labour, environmental, Indigenous, women’s, academic, health sector and fair trade organizations representing over 65 million people from both sides of the Atlantic that have signed a joint statement demanding that Canada and the EU stop negotiating an excessive and controversial investor rights chapter in the proposed Comprehensive Economic and Trade Agreement (CETA).
Intra-EU bilateral investment treaties: A test for European solidarity
14-Feb-2013 TNI
Corporations in Western Europe are suing Central and Eastern European countries at international arbitration tribunals through a vast web of intra-EU Bilateral Investment Treaties (BITs).