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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.

Energy Charter Treaty: Draft model investment dispute prevention and management protocol
5-Sep-2018
Drafted by the Energy Charter Secretariat
S. Korea discloses revised clauses of FTA with US
4-Sep-2018 Yonhap
South Korea will collect public opinions on the recently revised free trade agreement with the United States before sending it to the parliament for approval.
ICSID condemns Egypt to pay €1,735 million to Naturgy and ENI for a gas plant
3-Sep-2018 Publics.bg
The Spanish group will seek an agreement with the country to recover normality at the Damietta plant.
Investment protection in EU Vietnam FTA
28-Aug-2018 Vietnam Briefing
Vietnam and the EU have concluded their discussions on an Investment Protection Agreement, which they decided to keep it separate from their free trade agreement.
Spain sued over Popular resolution
28-Aug-2018 IFR
Mexican billionaire Antonio del Valle has launched actions against the Spanish government for its role in the process of putting Banco Popular into resolution and subsequent sale for €1 to Santander.
Tourist trap: Is tourism’s explosive growth hurting countries?
20-Aug-2018 IISD
Foreign investors in tourism have a long and successful history of using investor–state dispute settlement (ISDS) under investment treaties.
The 2018 draft Dutch model BIT: A critical assessment
17-Aug-2018 IISD
The revised Dutch model BIT seems a missed opportunity to achieve a better balance between the rights and obligations of foreign investors.
Making the right to regulate in investment law and policy work for development: Reflections from the South African and Brazilian experiences
16-Aug-2018 IISD
Despite challenges, the experiences of South Africa and Brazil demonstrate that there is room for genuine reimagination of the investment regime, where the interests of investors are matched with the development concerns of host countries.
Oil firms use secretive court hearing in bid to stop Vietnam taxing their profits
16-Aug-2018 The Guardian
ConocoPhillips and Perenco try to stop £140m levy from sale of oilfields in key case for tax avoidance by multinationals.
Select committee urged to stop the spread of ISDS under CPTPP
14-Aug-2018 Voxy
A range of labour, health and environmental organisations are calling for a clause to be inserted into the CPTPP Amendment Bill that would prevent future governments from extending investor-state dispute settlement to countries seeking to join the agreement.
BBVA starts arbitrations procedures with the ICSID on the exit from its Bolivian Pension Fund Administrator
14-Aug-2018 BBVA
BBVA has requested arbitration under the investment agreement between Spain and Bolivia with respect to the transfer of BBVA Previsión AFP (Pension Fund Administrator) to the Government of Bolivia.
Costs and benefits of investment treaties
10-Aug-2018 CCSI
As states look back over decades of treaty practice, the expected benefits have not clearly materialized, whereas the costs have been unexpectedly high.
EU-Canada (CETA) - Revised draft decisions on the appellate tribunal, the code of conduct and the rules for mediation for the implementation of the Investment Court System (EU proposal, July 2018)
10-Aug-2018
Secrecy shrouds cost to Australian taxpayer in controversial trade dispute
8-Aug-2018 The Guardian
US energy company is seeking $350m in compensation in so-called ISDS case over gas turbines in Pilbara.
Conflicts between Latin American countries and transnational corporations: The challenges of the region in the face of asymmetrical investment treaties
8-Aug-2018 IISD
Facing multimillion dollar claims, many Latin American states have become critical of investment arbitration. A group of researchers building a database of legal and policy tools aims to change this.
Expropriation without compensation? Ask the British.
4-Aug-2018 Africa is a country
Zimbabwe is still seeking to have annulled two Awards issued by a tribunal of the ICSID. The disputes concern the government’s expropriation of timber plantations which were first established by Rhodes’ BSAC.
One hundred years of expropriation without compensation
4-Aug-2018 Expropriate
On 29 July 1918, the British judiciary proffered the Empire’s most expressly and egregiously racist justification for the land dispossession of indigenous peoples. Today, an ICSID tribunal continues that mission. No matter which way Zimbabwean’s turn at the polls, they’re still paying for their invasion and occupation by Cecil Rhodes’ British South Africa company...
Asia’s evolving ‘free’ trade deal may not benefit workers
3-Aug-2018 Manila Times
Labor unions and workers’ rights advocates fear that the secretive RCEP agreement will further erode workers’ rights in the Asian region, while strengthening the hands of investors who may be able to sue governments for changing laws such as setting minimum wages, that would erode their profitability.
Swiss foreign investor claims it suffered US$264 million in damages caused by South Korean government
2-Aug-2018 Hankyoreh
This is the fourth ISDS dispute this year in which the South Korean government is embroiled.
India’s model bilateral investment treaty: Are we too risk averse?
1-Aug-2018 Brookings Institution
India’s Model BIT is "pro-state with limited rights to foreign investors" according to the US thinktank Brookings