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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.

ANALYSIS: In final version of its new model investment treaty, India dials back ambition of earlier proposals – but still favors some big changes
6-Jan-2016 IA Reporter
Following the release in April of 2015 of a draft model investment treaty, the government of India unveiled a final version of its proposed negotiating text.
Australia tobacco clash reverberates in EU trade talks
4-Jan-2016 Politico
The inclusion of an ISDS in an EU agreement could raise the likelihood of such cases being brought against all kinds of public interest and health protecting policies in the future.
Resolute Forest Products sues for $70M over Port Hawkesbury aid
31-Dec-2015 CBC
NAFTA action comes after closure of Laurentide mill blamed on Nova Scotian mill.
Foreign Direct Investment: myths and realities
30-Dec-2015 IPS
There is no clear evidence that bilateral investment treaties have a strong impact on the direction of FDI inflows.
American mining giant escaped Indonesian law with ISDS
30-Dec-2015 IPS
American mining corporation Newmont escaped the domestic processing requirement from Indonesia’s 2009 Mining Law. It achieved this by using a clause in a Dutch investment treaty.
French firm attacks Ugandan tax using ISDS
29-Dec-2015 Inter-Press Service
The heavily criticized legal mechanism, known as ISDS, is an important tool for European companies to pressurize developing countries. This year Uganda joins the rank of developing nations asking themselves: “Why have we ever signed this?”
American mining giant escaped Indonesian law with ISDS
29-Dec-2015 http://www.ipsnews.net/2015/12/amer...
American mining corporation Newmont escaped the domestic processing requirement from Indonesia’s 2009 Mining Law. It achieved this by using a clause in a Dutch investment treaty.
TWN: Common claims about TPPA investment chapter, ISDS – a rebuttal
22-Dec-2015 Aliran
Claims of the much-touted supposed ‘benefits’ of the investor-state dispute settlement mechanism are not really what they seem.
The dismissal of a case against plain cigarette packaging is good news for taxpayers
21-Dec-2015 The Age
I only wish to caution that we should be wary of anyone who suggests that the decision demonstrates that ISDS isn’t problematic.
Land deals and investment treaties
18-Dec-2015 IIED
The vast majority of the land deals from the recent wave of agribusiness investments in low and middle-income countries are protected by at least one investment treaty.
Philip Morris loses case against Australia’s tobacco plain packaging law
18-Dec-2015 The Australian Financial Review
Cigarette company Philip Morris has suffered another defeat in its long-running bid to overturn Australia’s plain packaging laws.
Govt approves revised BIT model, excludes tax matters
17-Dec-2015 The Economic Times
The Cabinet approved the revised model text for the Bilateral Investment Treaty.
Canadian companies behaving badly
11-Dec-2015 Now
Mining sins in poor countries are likely to get worse under Trans-Pacific Partnership.
Move to renewables jeopardized by EU corporate trade deals
10-Dec-2015 TNI
Proposed special rights for corporations in EU trade agreements threaten to prevent the necessary energy transition to tackle climate change according to a new report.
Canada warns EU trade deal could unravel if talks reopened
10-Dec-2015 Reuters
Canada is open to rethinking the contentious issue of investor protection in its free trade accord with the European Union but warns that EU demands for change risk unraveling the entire deal.
Egypt to appeal $1.76 bln award to Israel in gas dispute, freeze gas import talks
9-Dec-2015 Reuters
Egypt said on Sunday it would appeal an order by international arbitrators to pay $1.76 billion in compensation to state-owned Israel Electric Corp for halting gas supplies.
Investment treaties and the internal vetting of regulatory proposals: a case study from Canada
9-Dec-2015 SSRN
The study focused on whether ISDS contributed to changes in internal vetting of government decisions related to environmental protection in the province of Ontario, Canada.
There is no EU solution to climate change as long as TTIP exists
8-Dec-2015 The Independent
The European Union has been caught trying to undermine any meaningful outcome from the UN climate talks in Paris.
New Zealand, Australia ready to accelerate trade talks with the EU, ditch ISDS
8-Dec-2015 EurActiv
The EU has agreed to launch negotiations with New Zealand and Australia. The two countries are ready to speed up talks, and reach a deal in a reasonable timeframe.
Pakatan Harapan MPs seek AG’s advice on constitutionality of TPPA agreement
4-Dec-2015 The Malaysian Insider
Four lawmakers today wrote a letter to the Attorney-General seeking clarification whether the Investor State Dispute Settlement (ISDS) mechanism under the Trans-Pacific Partnership Agreement (TPPA) is in line with the spirit of the Federal Constitution.