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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.

Secret TPP text unveiled: it’s worse than we thought
6-Nov-2015 Public Citizen
Long-awaited text reveals gaps between Administration claims and actual TPP terms on key public concerns
TPP text shows some impacts from community campaigns, but still favours corporate rights over citizens and communities
5-Nov-2015 AFTINET
Preliminary analysis of the thousands of pages of the main chapters of the TPP text show there are still devils in the detail on medicine monopolies, investor rights to sue governments and copyright monopolies.
Despite assurances to contrary, intellectual property covered asset for TPP ISDS mechanism
5-Nov-2015 KEI
Despite assurances from the contrary by Australia and USTR, intellectual property is a covered asset subject to Investor State Dispute Settlement
Dissents matter
4-Nov-2015 Todd N. Tucker
Ecuador has been partially relieved of its debt to Occidental, which constitutes a pretty legalistic and conservative application of property rights by a state appointee dissenter.
The rise in arbitration claims filed by renewable energy investors under the Energy Charter Treaty
4-Nov-2015 Lexology
The number of claims filed by renewable energy investors under the Energy Charter Treaty (ECT) has risen significantly.
Japan releases TPP details – Vietnam to abolish tariffs and economic needs test
3-Nov-2015 Lexology
Besides abolishing tariffs and providing for investor-state dispute settlement, some of Vietnam’s highlights under the Trans-Pacific Partnership free trade pact include removing the dreaded economic needs test
Ecuador-Occidental arbitration award reduced to $1 bln
3-Nov-2015 Reuters
A World Bank tribunal reduced to about $1 billion the amount Ecuador must pay Occidental Petroleum Corp in compensation for seizing the U.S.-based company’s assets
Ecuador says talking to Occidental to resolve oil assets seizure
2-Nov-2015 Reuters
Ecuador is in talks with Occidental Petroleum Corp to seek an agreement over a roughly $1.77 billion award the Andean country was ordered to pay for seizing the U.S.-based company’s assets in 2006
Privacy and ISDS after Safe Harbour invalidation: Singapore FTA
2-Nov-2015 Vrijschrift Blog
The Court of Justice of the EU should assess whether the trade agreement with Singapore is compatible with the EU Treaties and Charter of fundamental rights before it enters into force.
New Zealand open to ditching old ISDS model under NZ - EU trade deal
30-Oct-2015 NZ Herald
New Zealand has an open mind about replacing traditional investor-state dispute settlement (ISDS) with a new international court-based system proposed by the European Union.
U.S. wary of EU proposal for investment court in trade pact
30-Oct-2015 Reuters
The United States is wary of a European Union proposal for a new court system to settle investment disputes as part of the world’s biggest free-trade agreement
Joseph Stiglitz: under TPP, polluters could sue U.S. for setting carbon emissions limits
30-Oct-2015 Democracy Now
The basic point is that TPP is a trade agreement that has all kinds of provisions intended to restrict regulations.
Shallow justifications for TPPA
28-Oct-2015
Catherine Beard claims there is no problem with the ability of corporations to sue the New Zealand government in offshore tribunals for loss of profits under the TPPA. She bases this on "commissioned research" from the New Zealand Institute of Economic Research (NZIER).
The GNWT’s dangerous affair with China
28-Oct-2015 Edge
Why FIPA makes the territorial government’s hot pursuit of trade with this superpower toxic for the North.
Is investor-state dispute settlement legal? A plea for EU judges to check
28-Oct-2015 Client Earth
We have severe doubts that ISDS is compatible with EU law, as we show in our new study.
International trade: UN expert calls for abolition of Investor-State dispute settlement arbitrations
28-Oct-2015 OHCHR
Trade must be made to work for human rights and development and not against them,” the United Nations Independent Expert on the promotion of a democratic and equitable international order, Alfred de Zayas, has said
Do we need investment treaties?
27-Oct-2015 The Jakarta Post
The essential purpose of investment treaties is to promote and protect foreign investment. This view is likely to be the reasoning of Indonesia when making bilateral investment treaties.
Edgewater responds to Galician Government statements concerning its mining concessions at the Corcoesto Gold Project, Spain
27-Oct-2015 Market Wired
Edgewater and Corcoesto intend to exercise all available remedies to protect the rights and the interests of their shareholders, including international arbitration.
Lawyer claims part of new trade deal ‘creates an alternative court system’
26-Oct-2015 East Anglia Daily Times
Parts of a controversial new trade deal being negotiated between the European Union and the United States are illegal, it has been claimed.
TPP sets limit on corporate suits
23-Oct-2015 The Japan News
The Trans-Pacific Partnership free trade pact limits the period for foreign companies to file damages lawsuits against host states over sudden regulatory changes to 3½ years