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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.

CPTPP jeopardises the future of open source software: OSIA
13-Jun-2018 Spatial Source
Open Source Industry Australia (OSIA) is calling upon the federal government to scrap the CPTPP over provisions that could decimate the Australian open source community.
Korea suffers first defeat in ISD case
8-Jun-2018 Business Korea
The Korean government was ordered to pay about 73 billion won to an Iranian investor who filed an investor-state lawsuit, claiming that he suffered losses in the process of participating in an auction for Daewoo Electronics in 2010.
Korean govt, Elliott begin pretrial negotiations on June 14
7-Jun-2018 Pulse
The South Korean government and Elliott Management next week will enter negotiation for an out-of-court settlement over the U.S. activist fund’s $670 million damage claim for the former administration’s interference in the 2015 merger between Samsung units.
Veolia loses ISDS case against Egypt – after six years and millions in costs
4-Jun-2018 AFTINET
Veolia has finally lost its claim against Egypt over a waste management contract dispute in which they claimed compensation for an increase in the minimum wage under a new labour law.
Did Canada buy an oil pipeline in fear of being sued by China?
1-Jun-2018 The Guardian
The logic to Trudeau’s action may lie in an obscure and overlooked 2014 agreement to ensure China got a pipeline built
The chilling effect: investor-state dispute settlement, graphic health warnings, the plain packaging of tobacco products, and the Trans-Pacific Partnership
31-May-2018 Info Justice
Investor-State Dispute Settlement (ISDS) poses significant challenges in respect of tobacco control, public health, human rights, and sustainable development.
TDM call for papers: Cybersecurity in international arbitration (special issue)
31-May-2018 Transnational Dispute Management
There is a manifest need for the international arbitration community to begin to develop a shared understanding of the scope of the threat and the appropriate response.
PL Holdings S.á.r.l. v. Republic of Poland (SCC Case No. V 2014/163) - Partial Award, 28 June 2017 - Case Report
31-May-2018 Transnational Dispute Management
Case Report
Investment law leads to more investment: A faulty premise?
28-May-2018 Oup Blog
When officials drafted investment treaties and arbitration, did they expect them to facilitate more investment? The answer that emerges from internal discussions among officials in the UK and the US is clear: no.
Corporate lawyers hijack UN meeting, while civil society is sidelined
28-May-2018 Truthout
The takeaway from the UNCITRAL’s process for its so-called "reform" discussions is that lawyers making millions in ISDS cases are welcomed, while the voices of the millions of people whose lives are harmed by ISDS cases brought by multinational corporations are barely an afterthought.
Bolivia ordered to make US$49mn award to Chile’s Quiborax
24-May-2018 BN Americas
After a 14-year dispute between Quiborax and the Bolivian government, the International Centre for Settlement of Investment Disputes (ICSID) rejected Bolivia’s application to annul a US$48.6mn award in favor of the Chilean mining company.
Miner planning US$300mn Guatemala arbitration
24-May-2018 BN Americas
Exmingua is planning to launch arbitration proceedings against Guatemala following the suspension of its Tambor gold project.
Airbus withdraws arbitration demand over $3.7 billion helicopter deal
23-May-2018 Defense News
The Polish General Counsel has announced that Airbus Helicopters has withdrawn its application for international arbitration over its dispute with Poland.
Spain loses its third millionaire arbitration award for the reduction of renewables
18-May-2018 Turkey Telegraph
ICSID imposes a fine of 64.5 million euros for a claim by a fund of the state of Abu Dhabi.
Canada backs foreign investor rights to protect mining sector: Book
17-May-2018 Common Sense Canadian
Canada’s controversial mining sector may be the driving force behind the country’s insistence on protecting foreign investors’ rights over laws that guard its own citizens and environmental values.
New Zealand signs side letters with five CPTPP members to exclude compulsory investor state dispute settlement
14-May-2018 Mondaq
New Zealand has recently signed "side letters" to exclude compulsory Investor State Dispute Settlement with five members of the CPTPP – Brunei Darussalam, Malaysia, Peru, Viet Nam and Australia.
Draft Council conclusions on the negotiation and conclusion of EU trade agreements
12-May-2018 European Council
EU member states approved the Commission plans to keep investment protection provisions seperate from trade agreements so that they can be approved without the ratification of national or regional parliaments.
Maine state legislators endorse removing ISDS from NAFTA
11-May-2018 IATP
The Maine Citizen Trade Policy Commission, a legislator-run, bipartisan governmental body, recently sent a letter to U.S. Trade Representative calling for ISDS to be removed in its entirety from NAFTA.
Elliott seeks $670 mil. compensation from gov’t over Samsung C&T merger
11-May-2018 Korea Times
Elliott Associates is demanding more than $670 million in compensation from the government for losses and damages it claims to have suffered regarding the merger of Samsung C&T and Cheil Industries in 2015.
Germany says Vattenfall has no grounds to seek arbitration over nuclear phase-out
9-May-2018 Reuters
Swedish utility Vattenfall has no legal grounds to ask a US arbitration court if it can claim 4.7 billion euros from Berlin for forcing it to halt nuclear production, the German government has said.