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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.

Why NZ must get rid of ISDS now
25-Mar-2019 Scoop
Australia’s costs for tobacco case it won show why NZ must get rid of ISDS now.
End of Tanzania, Netherlands pact nears
25-Mar-2019 The Citizen
The preferential protection of bilateral investments between Tanzania and the Netherlands is likely to cease next month but the protection for investments made before the date of termination continues to apply for a period of 15 years (until 1 April 2034).
Media release: Philip Morris paying only half of Australia’s costs in ISDS case is outrageous, says AFTINET
22-Mar-2019 AFTINET
It has taken a second FOI case and another two years to reveal that Australian taxpayers were only awarded half of the costs of defending Australia’s tobacco plain packaging laws against tobacco giant Philip Morris in March 2017.
ICSID arbitration Churchill v Republic of Indonesia: Annulment proceedings dismissed
20-Mar-2019 Churchill Mining
The annulment committee has dismissed Churchill’s application for annulment of the award for the dispute arising out of the revocation of the mining licenses that made up the East Kutai Coal Project in East Kalimantan.
Venezuela’s Guaido to appeal $8.75 billion ConocoPhillips award
15-Mar-2019 Bloomberg
Venezuela’s opposition leader and self-proclaimed president Juan Guaido plans to appeal a $8.75 billion award issued to ConocoPhillips by the World Bank’s arbitration tribunal last week.
Investment protection proposals under RCEP threaten India’s pharma industry
15-Mar-2019 The Wire
Free trade agreements like the RCEP will infringe on India’s intellectual property laws. India must stand its ground in the interest of public health.
NextEra Energy wins dispute against Spain
15-Mar-2019 Renewables Now
The ICSID ruled against Spain in a case brought by NextEra Energy Inc regarding the US utility’s lost investments in two 49.9-MW concentrated solar power plants.
Lydian International submits notices to the Government of Armenia under bilateral investment protection treaties
12-Mar-2019 Proactiveinvestors
The company said illegal blockades have prevented access to the Amulsar gold project since late June 2018.
Venezuela must pay Conoco over $8 billion: World Bank
9-Mar-2019 Reuters
Venezuela must pay ConocoPhillips more than $8 billion to compensate for the 2007 expropriation of oil assets by the country’s late socialist leader Hugo Chavez, the World Bank ruled.
Building a mirage: The effectiveness of tax carve-out provisions in international investment agreements
7-Mar-2019 South Centre
The broad language in investment agreements has allowed investor-state dispute settlement tribunals to scrutinize tax measures adopted by States, and determine that such measures resulted in a breach of State’s obligations under the agreement.
It’s more than a free trade agreement. But what exactly have Australia and Indonesia signed?
6-Mar-2019 The Conversation
Indonesia – Australia CEPA signed without prior released text to assess its costs and benefits.
Korea`s first for-profit hospital in Jeju faces license revocation
5-Mar-2019 Pulse
The Korea government may face another investor-state dispute case from the Chinese capital if the license is called off.
Shell put Nigeria under pressure with ISDS process to obtain oil field OPL 245
1-Mar-2019 SOMO
Shell used the investment agreement between the Netherlands and Nigeria to obtain a lucrative oil field at remarkably good conditions.
French firm Suez explores selling off debt claim against Argentina
27-Feb-2019 Buenos Aires Times
French waste and water group Suez SA has contacted "specialised funds" about possibly selling its debt claims to Argentina, the group announced.
Chevron Vs Ecuador: international arbitration & impunity (ISDS case)
27-Feb-2019 Dismantle Corporate Power and Stop Impunity
In February of 2011 the Ecuadorian Courts delivered an historic verdict, sentencing the Big Oil Corporation Chevron to pay US$9,500 million dollars for its contamination of the Ecuadorian Amazon (1964-1992). However, Chevron hit back via the Investor-State Dispute Settlement system and sued Ecuador.
Lessons from Aotearoa: The indigenous “exception” clause in free trade agreements
26-Feb-2019 Yellowhead Institute
Exception clauses amount to little more than tokenism, and short-change our full rights to determine trade relationships on our land and oceanic territories.
Canada ordered to pay US concrete company $7M in NAFTA case
26-Feb-2019 CBC
Long-running case began after New Jersey company’s bid to open a quarry in Nova Scotia rejected in 2007
Why East Africa needs new funding sources
25-Feb-2019 The East African
Seatini said East African countries should find alternative ways to finance development projects rather than depend on public-private partnerships and bilateral investment treaties, which have cost the region dearly.
We cannot allow Liam Fox’s post-Brexit trade plans to go unscrutinised
22-Feb-2019 The Guardian
Trade deals containing clauses that threaten human rights are being debated in parliament – they must be defeated
Russel Norman – climate change and free trade
21-Feb-2019 Daily Blog
The panel on a sustainable world at the hui in October 2018 on What an Alternative and Progressive Trade Strategy for New Zealand argued for major changes to address pressing environmental issues.