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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.

ISDS: courting foreign investors
7-Oct-2015 S2B
Why the Commission’s proposal for an “Investment Court System” still fails to address the key problems of foreign investors’ privileges
EU ratification process of FTA with South Korea done and dusted
7-Oct-2015 Vieuws
The European Commission intends to announce in mid October its plans to revise the deal in order to add the missing investment protection chapter to it.
TPP deal includes tobacco carveout, teeing up fight with congress
7-Oct-2015 Global Trade Online
Trans-Pacific Partnership (TPP) countries have agreed on language that will allow members to exclude tobacco control measures from the scope of investor-state dispute settlement.
Yukos: the saga continues
6-Oct-2015 The Global Legal Post
The bankruptcy of oil and gas giant Yukos led to multiple proceedings against the Russian state and some enormous awards.
TPP carve out for tobacco shows core flaws in investor-state dispute settlement (ISDS)
2-Oct-2015 Info Justice
The new exception validates, rather than assuages, the concerns of those who have been criticizing ISDS systems for many years. Without express carve outs, ISDS provisions do threaten common health and safety regulations.
Foreign direct investment, investment agreements and economic development: myths and realities
2-Oct-2015 South Centre
Foreign direct investment (FDI) is one of the most ambiguous and the least understood concepts in international economics. Common debate on FDI is confounded by several myths regarding its nature and impact.
US pushes anti-tobacco compromise in Pacific trade deal
2-Oct-2015 The Edge Markets
Governments will be allowed to block tobacco companies from suing over anti-smoking measures under a US proposal being considered by Pacific trading partners as part of Trans-Pacific Partnership trade deal.
A need for preventive investment protection?
2-Oct-2015 Kluwer Arbitration Blog
There is an obvious need at the investors’ side for a mechanism making it possible to prevent the threatened violation of their investment. It is fair to say that where the violation of the investment is still only potential, notifying the dispute should be the primary tool for investment protection.
Selling Canada out, one deal at a time
2-Oct-2015 The Star
What little we know about the Harper government’s many international trade deals is cause for grave concern.
No longer a fair game?
2-Oct-2015 CDR
What are the next steps for investment protection in South Africa, as the country draws up new legislation governing foreign direct investment following the termination of a number of bilateral investment treaties?
Corporate power unbound: investor-state arbitration of IP monopolies on medicines - Eli Lilly v. Canada and the Trans-Pacific Partnership agreement
1-Oct-2015 SSRN
Despite the deep irony of free trade agreements being subverted to codify and extend anti-competitive monopoly rights the joining of enhanced intellectual property rights (IPRs) and strengthened investor rights is creating a wild-west opportunity for unbounded corporate power.
Canada misses the cut for EU’s proposed investor-state dispute court
1-Oct-2015 Embassy
Canada will likely be left out of a new system proposed by the European Union for settling disputes between countries and corporations—at least for now.
Murray Rankin v. Canada
30-Sep-2015 Focus Online
Rankin acted on behalf of an American mining corporation in its successful bid to sue Canada using NAFTA.
Corporate bias at the World Bank Group
30-Sep-2015 Bretton Woods Project
This briefing finds significant ICSID bias in favour of corporations and commercial interests by analysing ICSID overall and by looking at a specific case brought by a global mining corporation against El Salvador.
EU to co-finance Investment Court System in TTIP from its budget
29-Sep-2015 Vieuws
The European Commission wants the new Investment Court System (ICS) in the Transatlantic Trade and Investment Partnership (TTIP) to be co-financed from the EU budget only, Mauro Petriccione, Deputy Director-General at DG Trade has told MEPs.
El Salvador vs Pacific Rim: the price of saying ‘no’ to a gold mine
29-Sep-2015 The Argentina Independent
El Salvador is defending itself against a US$301m lawsuit filed after it blocked a mining project to protect the country’s heavy-polluted water supply. The imminent verdict will set a precedent amid a growing trend of companies suing governments when they can’t exploit their natural resources.
Gordon Campbell on TPP dairy , and investor-state disputes
28-Sep-2015 Scoop
Gordon Campbell on New Zealand’s TPP done deal on dairy, and on investor-state disputes
Canada-EU trade deal that allows US firms to sue British govt sparks outrage
26-Sep-2015 RT
Campaigners gathered outside a secret court in central London on Friday to protest against a controversial EU-Canada trade deal that will empower corporations to sue the British government.
Toxic waste dumped on poorest Ecuadoreans for 26 years but Chevron has yet to pay
25-Sep-2015 Tele Sur
Canadians must now counter Chevron’s inevitable propaganda campaign as the legal battle continues.
Trans-Pacific Partnership: Renegotiating NAFTA by the back door
23-Sep-2015 rabble.ca
For years, trade and justice activists have proposed renegotiating the North American Free Trade Agreement (NAFTA) to address some of the deal’s most damaging features: for example, by removing the anti-democratic investor-state dispute settlement provisions of Chapter 11, linking trade benefits to genuine protections for human and labour rights (all the more important given the deteriorating democratic situation in Mexico), and establishing a continent-wide strategy for auto investment and production.