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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.

Compulsory licensing in Colombia: Leaked documents show aggressive lobbying by Novartis
12-Apr-2017 Public Eye
Confidential documents obtained by Public Eye show that Novartis has threatened Colombia with international investment arbitration under its BIT with Switzerland to avoid the issuance of a compulsory license
Labor union calls out Peru over land bond dispute
11-Apr-2017 Politico
The Teamsters labor union has escalated an investor dispute against Peru, arguing that its members’ pensions could be thrown into jeopardy as a result of the government’s alleged failure to pay investors $5 billion worth of debt tied up in land bonds.
India’s bilateral investment pacts under cloud
10-Apr-2017 The Hindu
Most have expired; partners unwilling to renew them under Finance Ministry’s model draft
Kingsgate to talk with Thai government
7-Apr-2017 The Australian
The Thai government says it is ready to hold talks with Australian goldmining company, Kingsgate Consolidated, over the closure of its Thai mining operations last year.
Gilead Pharma corp withdraws investment arbitration after Ukraine agrees to settlement of dispute over monopoly rights to market anti-viral drug
5-Apr-2017 IA Reporter
Ukraine has settled a dispute with American pharmaceutical company Gilead Sciences Inc., following the company’s pursuit of legal remedies in both domestic courts and via investment arbitration.
Kingsgate seeks Thai gold mine resolution
3-Apr-2017 Courrier Mail
Australian goldminer Kingsgate Consolidated is banking on free trade agreement provisions to press the Thai government to open talks over its 2016 decision to shut all gold mines.
Pharmaceutical giant threatens to drag Government before corporate tribunal
1-Apr-2017 Public Citizen
Novartis battle against Colombian Government highlights the threats to public health posed by the outrageous investor-state dispute settlement regime and bad “trade” deals.
India receives 20 claim notices under BIPA disputes: Govt
1-Apr-2017 Business Standard
India has received around 20 claim notices in cases of investor-state arbitration disputes under bilateral investment protection pacts.
Churchill updates on $1.3bn claim against the Republic of Indonesia
31-Mar-2017 Stock Market Wire
Churchill Mining says it continues to pursue its $1.315bn claim against the Republic of Indonesia in relation to the revocation of its licenses at the East Kutai Coal Project.
IBON tells DENR to be firm vs big miners
29-Mar-2017 Business Mirror
Mining firms should not resort to international arbitration in forcing the Department of Environment and Natural Resources to revoke its decision to suspend 28 mines and cancel 75 mineral-production sharing agreements.
TransCanada Keystone XL rejection lawsuit dropped - arbitrator
24-Mar-2017 Reuters
Transcanada Corp’s legal challenge against the United States over its past rejection of Keystone XL pipeline has been dropped.
Romania - the end of intra-EU bilateral investment treaties
24-Mar-2017 Lexology
The law approving the termination of agreements on mutual promotion and protection of investments concluded by Romania with other Member States (Intra-EU BITs) was published in the Official Gazette.
JEFTA: The latest massive ’trade’ deal you’ve never heard of, negotiated behind closed doors, with zero public scrutiny
22-Mar-2017 Tech Dirt
One of the negotiations that has been going on in the background is for a major trade agreement between the EU and Japan since 2013.
ICSID rules in favour of Tethyan over Reko Diq project
22-Mar-2017 Stock Market Wire
The ICSID tribunal rejected Pakistan’s final defence against liability and confirmed that Pakistan had violated several provisions of its bilateral investment treaty with Australia
Eli Lilly loses quixotic quest to get Canada to pay $500 million for rejecting its bad patents
22-Mar-2017 Tech Dirt
Just the fact that the Canadian government had to go through this massive and expensive process for many years just for rejecting two bad patents should show why ISDS provisions are such a problem.
Canada scores ISDS victory over Eli Lilly
20-Mar-2017 Politico
Canada has prevailed over pharmaceutical giant Eli Lilly in a long-running investor-state dispute the drug company filed under NAFTA’s investment chapter.
Green light for Romania to terminate its intra-EU bilateral investment treaties
15-Mar-2017 Kluwer Arbitration Blog
The Romanian Parliament sent to the Romanian President for promulgation the Law allowing for the termination of the Bilateral Investment Treaties between Romania and other Member States of the European Union.
Venezuela lawyer says $1.4 billion Exxon damages award overturned
10-Mar-2017 Reuters
A World Bank tribunal’s order for Venezuela to pay $1.4 billion in damages to Exxon Mobil Corp over nationalizations has been annulled
Stop RCEP. Trade for the People. Not for Corporate Elites
7-Mar-2017 People Over Profit
People Over Profit Statement on the 17th Round of Negotiations of the Regional Comprehensive Economic Partnership (RCEP) in Kobe, Japan 27 Feb-3 March 2017
On the issues raised by the Canadian side on MFN-forward
6-Mar-2017 DNA
Sitharaman clarified that the negotiation should not get lost in peripheral issues and should focus on bringing in promotion and protection elements.