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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.

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
Romania’s government agrees to a complete lack of transparency in the Rosia Montana arbitration case
7-Oct-2016 Save Roșia Montană
In disregard with official requests, Romania’s government and Gabriel Resources decided to play out their dispute behind closed doors.
Romania to terminate its intra-EU Bilateral Investment Treaties
3-Oct-2016 Lexology
The President of Romania agreed to submit to the Romanian Parliament draft legislation approving termination of 22 bilateral investment treaties that Romania concluded with other EU Member States.
Is toxic trade in your backyard?
3-Oct-2016 Sierra Club
Looming trade deals threaten efforts to keep fossil fuels in the ground
Commission boosts infringement procedures against five countries
30-Sep-2016 Politico
The European Commission today ramped up infringement procedures against Austria, the Netherlands, Romania, Slovakia and Sweden to push them toward scraping their bilateral investment treaties with other EU nations.
Canada’s civil society calls for Chevron’s assets to be frozen so Ecuador judgment can be paid
30-Sep-2016 Friends of the Earth Canada
Some of Canada’s largest environmental, labor and civil society organizations have now joined the growing international community demanding that Chevron clean up its toxic waste in the Ecuadorian Amazon.
Case between Ecuadoreans, Chevron heading to Ontario court
29-Sep-2016 The Globe and Mail
The latest salvo in a marathon multibillion-dollar legal battle between global energy giant Chevron Corp. and a group of Ecuadorean residents over environmental damage has begun in a Toronto court.
Morocco ratifies 3 bilateral investment treaties
29-Sep-2016 I-ARB Africa
This surge in the ratification of “Intra-African” BITs is part of the Moroccan “South-South Partnership” strategy
Mitigating political risk: Treaty protections versus political risk insurance
28-Sep-2016 Lexicology
A discussion of some general distinctions between invesment treaty protections and political risk insurance.
India to operationalize BIPA with Canada
28-Sep-2016 Live Mint
On Canada’s insistance, India is expected to sign a bilateral investment treaty (BIT) with Canada based on an old text, not its new model BIT. The old text contains contentious provisions such as the investor-state dispute settlement mechanism.