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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.

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.
A new NAFTA, but not necessarily a better one
3-Mar-2017 Open Canada
NAFTA has its fair share of critics who want to see it updated. But if Trump has his way, a re-negotiated agreement may prove disappointing.
RCEP investment chapter presents a grave threat to access to medicines
3-Mar-2017 MSF
Médecins Sans Frontières (MSF) raises concerns over provisions under negotiation in the RCEP investment chapter that threaten to restrict access to affordable medicines for millions of people
India refuses to accede to European Union requests; post-March, investors to have no legal cover
2-Mar-2017 Financial Express
Fresh investments by European companies in India and vice versa after April 1 won’t enjoy legal protection under any bilateral arrangement, as India has decided not to accede to requests by the European Union.
RCEP, an attack on food sovereignty, must be junked – PCFS
2-Mar-2017 People’s Coalition on Food Sovereignty
RCEP will be harmful to developing countries’ struggle for industrialization, access to cheaper medicines, quality social services, and protection of the environment
Unpacking trade and investment
2-Mar-2017 Rosa Luxembourg
Series of 11 fact booklets about global trade policies.
EU-Japan FTA - draft investment chapter (February 2017)
2-Mar-2017
EU-Mexico FTA - draft investment chapter, investment court system section (EU text proposal, February 2017)
2-Mar-2017
Govt costs for tobacco case still secret
2-Mar-2017 The Australian
Taxpayers are still in the dark about how much of their money has been spent on fighting tobacco giant Philip Morris over plain packaging laws.
TransCanada’s $15 billion U.S. Keystone XL NAFTA suit suspended
28-Feb-2017 Reuters
TransCanada Corp has suspended a $15 billion NAFTA suit filed against the United States over the Keystone XL pipeline after U.S. President approved the project.