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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 pays miner $425 million in move to safeguard Citgo
27-Nov-2018 Bloomberg
Venezuela made an partial payment of a settlement designed to resolve a $1.2 billion arbitration award to a bankrupt Canadian gold miner that’s laying claim to the assets of the parent of refiner Citgo Holding Inc. if it’s not paid in full.
Abritration Court awards South American Silver $28 million for Malku Khota in Bolivia
26-Nov-2018 Mining.com
The Hague-based Permanent Court of Arbitration has awarded South American Silver $18.7 million for amounts invested and another $9 million in interest for its Malku Khota concession, which the Bolivian government revoked in 2012.
US coal firm launches NAFTA suit against Alberta over coal phase-out
20-Nov-2018 The Globe and Mail
A US coal miner is launching a NAFTA suit against Alberta over its policy to phase out coal in the electricity system by 2030.
PHA4: Neoliberal policies and corporate takeover are the cause of the world health crisis
19-Nov-2018 Peoples Dispatch
Multinational corporations are suing countries for using generic versions of life saving medicines.
Arbitration against the Kingdom of Spain: final award
16-Nov-2018 Globe Newswire
The net award for Athena Investments amounts to approx. EUR 11M.
Govt mulls delinking investment from FTAs, seeks legal opinion
15-Nov-2018 BusinessLine
Certain ISDS (Investor-state dispute settlement) cases against India led it to review its stand on investment treaties.
Slovakia does not have to compensate the Union private health insurer
9-Nov-2018 Slovak Spectator
The German Supreme Court dismissed the original arbitration decision against Slovakia concerning the ban on health-insurance companies’ profits.
Special economic zones: engines of development or sites of exploitation?
8-Nov-2018 IIED
Many SEZs have been associated with compressions of land, labour and human rights. Investment treaties protect investments against adverse regulatory change, including in SEZs. To date, investors have brought at least 20 arbitrations to challenge diverse aspects of SEZ regimes.
Keynote address by George Kahale, III
6-Nov-2018 Curtis
Combined with the dispute settlement mechanism of international arbitration, investment treaties have been transformed intol "weapons of legal destruction."
Miners want ISDS in Indonesia free trade agreement
2-Nov-2018 Australian Financial Review
Businesses in the mining sector and beyond insist protection for Australian investors in Indonesia is required in a free trade deal.
The limitations of the UNCITRAL process on ISDS reform
30-Oct-2018 SOMO
The UNCITRAL process runs a real risk of producing middle-ground solutions that will fail to address the fundamental flaws of the ISDS system and will only further institutionalise and re-legitimise the system.
More than 300 civil society organizations from 73 countries urge fundamental reform at UNCITRAL’s Investor-State Dispute Settlement discussions
30-Oct-2018
More than 300 civil society groups and trade unions urged governments participating in United Nations meetings in Vienna to completely overhaul the controversial Investor-State Dispute Settlement (ISDS) system.
EU-Vietnam trade and investment agreements (Aug 2018)
28-Oct-2018 European Commission
As published by the European Commission
How to make investment agreements more progressive: stop signing them
28-Oct-2018 Globe and Mail
Unverified rumours circulated in early 2018 that Canada was willing to abandon NAFTA’s provisions entitling foreign investors to sue for damages under what is called investor-state dispute settlement, or ISDS.
How the lobbies used the threat of ISDS to neuter the Hulot Act
27-Oct-2018 Le Monde
The documents highlight for the first time the pressure placed on the French parliament by a foreign company’s threat to use the ISDS mechanism.
It’s time to stop giving more rights to global corporations
26-Oct-2018 Sydney Morning Heralds
The UN Conference on Trade and Development new research shows that increased market power of global corporations is driving global income inequality. It recommends a review of existing regulation and trade agreements to develop “measures to curb abusive business practices.”
Korean utility refers India to arbitration
24-Oct-2018 Natural Gas World
South Korean utility Korea Western Power Company (Kowepo) has begun arbitration proceedings against India for not honoring a fuel supply commitment to a gas-based power plant that it part-owns in western India
Kenya wins big in Ksh.200B Cortec Mining case
23-Oct-2018 Citizen Digital
A case filed by Cortec Mining Ltd and two others against the Republic of Kenya under the Kenya-UK BIT amounting to Ksh.200billion has been dismissed.
Liberals should consistently fight trade deals that let corporations sue Canada
21-Oct-2018 Huffington Post
Investor-state dispute settlement was tempered in the USMCA, but the government needs to justify why it persists asking for it in other agreements.
Schindler sues Korean gov’t over Hyundai Elevator
15-Oct-2018 Korea Herald
Swiss elevator maker, Schindler Group, has officially filed for an investor state dispute settlement against the Korean government seeking US$300 million in compensation for losses over its approval of paid-in capital increase of Hyundai Elevator