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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.

EU executive and Canada join forces to promote multilateral investment system to replace ISDS
8-Nov-2016 Vieuws
The move follows the Commission’s pledge from last year to “start work, together with other countries, on setting up a permanent International Investment Court.”
EU member states divided in face of Commission crackdown on intra-EU ISDS
3-Nov-2016 Bordelex
Once a desirable form of European international relations endorsed by the Commission, Bilateral Investment Treaties (BITs) became a problematic issue after the accession of former socialist countries in Central and Eastern Europe to the European Union, and with the emergence of the first intra-EU investment arbitration – ISDS – cases.
El Salvador lessons for the TPP fight
28-Oct-2016 Inequality
In a tale of people power over corporate power, a tribunal has ruled against a global company in a case over mining rights. Now we need to block trade deals that allow these “investor-state” lawsuits.
Peruvians urge Himes to oppose TPP
27-Oct-2016 Stamford Advocate
"Our experience in Peru demonstrates how the TPP model prioritizes trade and investment above the protection of the environment, ecosystems, and life itself."
Brics dispute resolution mechanism: Challenges ahead, but promises much
25-Oct-2016 Financial Express
Any intra-Brics framework will only be effective if awards rendered by such a body are enforceable without the added difficulty of getting entangled in domestic proceedings.
Canada to India: Tighten investment protection norms in new model treaty
24-Oct-2016 The Hindu
New Delhi examining whether dispute settlement mechanism can be tweaked
TDM Special Issue on Int’l Arbitration involving Commercial and Investment Disputes in Africa
20-Oct-2016 TDM
This Special Issue presents diverse views on a number of salient topics affecting international arbitration involving the African continent.
Secret arbitration system affecting Romanian community
20-Oct-2016 VOA
Protests against the Rosia Montana mine project continued for more than 15 years and resulted in the largest demonstrations in Romania since the late 1980’s.
Ecuador’s Indigenous leader fighting Chevron visits Dakota camp
19-Oct-2016 Telesur
“We don’t want what happened to us to happen to the people in Dakota,” Piaguaje told teleSUR.
Rethinking investment treaties to advance human rights
18-Oct-2016 IIED
There is considerable room to rethink substantive norms and dispute settlement arrangements.
Legal statement on investment protection in TTIP and CETA
17-Oct-2016 Stop TTIP
Over 100 law professors from across Europe have come together to send a clear message to EU decision makers demanding the investor protection mechanisms be excluded from TTIP and CETA.
Philippine Government’s crackdown on nickel mining - Arbitration options for foreign investors
17-Oct-2016 KWM
The viability of the Filipino nickel industry is in a state of flux following President Rodrigo Duterte’s national audit of the country’s forty mines. Lawyers explore ISDS options.
Free trade’s chilling effects
17-Oct-2016 Taylor & Francis
The TPP threatens to extend the most draconian feature of the contemporary free trade model: private corporation’s ability to sue sovereign nations.
After seven years and millions of dollars, decision announced in Pac Rim mining company vs. El Salvador
16-Oct-2016 Institute for Policy Studies
Coalition of groups state “there are no winners," investor-state arbitration subverts democracy.
Commission faces EU court battle over secret TTIP documents
14-Oct-2016 EurActiv
The European Commission faces an EU court battle to keep secret its lawyers’ analysis on whether the controversial investor-state-dispute (ISDS) clause in draft trade deals with the USA and Canada is illegal.
Is Argentina looking for reconciliation with ISDS?
14-Oct-2016 Kluwer Arbitration Blog
In a quite short period the new government, led by the recently elected President Mauricio Macri, has turned around its foreign policy and alignments.
Backdoor for investor-state disputes in TiSA
13-Oct-2016 Australian Institute of International Affairs
There is a loophole that may allow private investors to bring a dispute against states.
Joint Interpretative Declaration on CETA: unpacking the “clarifications” on investment protection
12-Oct-2016 S2B
The Joint Interpretative Declaration on the Comprehensive Economic and Trade Agreement (CETA) reaffirms that investors can bypass the domestic court systems and will enjoy ample rights without any obligations.
India trade talks heating up, but ex-envoy cautions: ‘we’ve been to the altar before’
12-Oct-2016 The Hill Times
The Liberals’ relative flexibility on investor-state dispute systems and the Temporary Foreign Worker Program, and an expected visit to India by the PM, may help to move talks along.
TPP trade deal: plain packaging challenge triggered ’hysteria’, lawyer tells MPs
11-Oct-2016 The Guardian
Lawyer for Philip Morris’s bid to take Australia to court over cigarette laws says Australia has nothing to fear from trade deals that allow investor-state disputes