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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.

Singapore court sets aside award against Lesotho
6-Sep-2017 African Law Business
The Singapore High Court has set aside an investor-state arbitral award on the merits against the Kingdom of Lesotho. The case is an important one, as it concerns whether investors can use arbitration to resolve cases that were pending before the SADC Tribunal when it was dissolved by the SADC Summit in 2014.
Would Vodafone comply with Delhi high court order?
4-Sep-2017 Live Mint
The Delhi high court has passed an ex-parte order restraining Vodafone Group Plc. from proceeding with arbitration under the India-UK Bilateral Investment Protection Agreement (India-UK BIPA). However, it remains to be seen whether Vodafone would comply with this order of the court.
Romanian Unesco site proposal may be halted to allow gold mining
1-Sep-2017 The Guardian
Romania’s prime minister has suggested his government will withdraw an application to have the Roman gold-mining area of Roșia Montană declared a Unesco world heritage site, potentially reviving controversial plans to resume mining.
Govt will lose gold mine dispute due to Article 44 use: academics
1-Sep-2017 The Nation
FTA Watch warns that Thailand would most certainly lose an arbitral tribunal process regarding allegations that it violated the Thailand-Australia Free Trade Agreement, exposing the country to huge losses due to claims for compensation.
Foreign investors may take Korea’s mobile fee cut to ISD settlement
30-Aug-2017 The Investor
Foreign investors are making increasing inquiries about possible losses to their investment in South Korean telecom companies, three days before the carriers are to decide on whether to file a lawsuit against the government’s fee cut plan, industry sources said on Aug. 28.
Canada says ’hard no’ on changing NAFTA dispute resolution
30-Aug-2017 Washington Examiner
Canada will oppose any effort to change the investor-state dispute resolution system in the North American Free Trade Agreement, sources tell the Washington Examiner
Trump move on settling trade disputes splits NAFTA fans and critics
29-Aug-2017 Washington Examiner
The Trump administration’s proposal to revamp NAFTA’s system for settling disputes between governments and private companies splits both the opposition to and the advocates for ISDS
"Modernize NAFTA, but don’t ruin its energy trade provisions"
25-Aug-2017 Washington Examiner
More than 100 associations representing US businesses are teaming up to encourage the Trump administration to maintain ISDS protections as it renegotiates NAFTA, writes the head of the US oil and natural gas industry trade group
Support threatened if Trump team abandons investment protection provision
25-Aug-2017 FT
Three top US business groups have fired a warning shot at the Trump administration, threatening to drop their support for its renegotiation of the North American Free Trade Agreement if a controversial investment protection provision is abandoned.
A BIT of critique
24-Aug-2017 The Hindu
A committee in India, led by Justice B.N. Srikrishna, has lost an opportunity to push for the recalibration of the country’s BIT regime
US bid to exit Nafta arbitration panels draws ire from businesses
23-Aug-2017 WSJ
US trade officials are putting together a proposal to let the US withdraw from a corporate arbitration system at the heart of the North American Free Trade Agreement, upsetting big American companies that say the system protects their investments overseas.
Can foreign investors sue the UK over Brexit?
21-Aug-2017 Global Legal Post
Foreign investors may have a case against the UK government if profits suffer post-Brexit, says Bryan Cave’s Maria Gritsenko.
Trump’s penchant for deal-making evident in push to renegotiate KORUS
21-Aug-2017 Hankyoreh
The Moon administration needs to stand up to Trump with the confidence of a party ready to accept termination of the agreement, writes The Hankyoreh
What to do about corrupt arbitral tribunals?
16-Aug-2017 The Global Anticorruption Blog
That concern is a real and serious one, but there is also a more direct and crude problem: parties (or their lawyers) bribing, or making backdoor deals with, the arbitrators to secure a favorable outcome.
Duterte’s RCEP push at ASEAN, implications on Philippines economy & development
16-Aug-2017 IBON
The more far-reaching implication of RCEP is for Philippines’s sovereignty in regulating foreign investments
«Le moratoire de Québec était légitime», dit le Centre québécois en droit de l’environnement
12-Aug-2017 Le Devoir
Québec était en droit d’instituer un moratoire sur la fracturation hydraulique et Ottawa ne devrait pas compenser Lone Pine.
Business groups to the administration: Keep ISDS in NAFTA
10-Aug-2017 Politico
More than 100 U.S. business groups and associations are pushing the Trump administration to not only preserve investor-state dispute settlement and related provisions in an updated NAFTA agreement but to also strengthen them to further protect intellectual property and interests.
NAFTA renegotiation: ISDS reform objectives
8-Aug-2017 Lexology
ISDS reform is one of several “negotiating objectives” announced last month by the Office of the United States Trade Representative.
India may deviate from model BIT to meet Canada’s demands
4-Aug-2017 The Hindu
As talks with Canada began before model text was approved by Cabinet, deviations may be allowed.
Tell us who gains from RCEP: People’s Forum demands as RCEP talks end
28-Jul-2017 People’s Forum against FTAs and RCEP
“Tell us at least now who gains from RCEP,” People’s Forum challenges the Indian government as the 19th round of RCEP negotiations comes to an end