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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.

Poland risks Bilateral Investment Treaty claims in adopting new law
5-Aug-2015 Lexology
The Polish Parliament has just passed a new law restricting investment in certain strategic Polish companies, which raises the risk of potential Bilateral Investment Treaty claims
TransCanada may recoup costs from US if Obama rejects Keystone
4-Aug-2015 Bloomberg
A provision in the North American Free Trade Agreement would let the Canadian company TransCanada Corp. recoup some of the $2.4 billion spent on its Keystone XL project
UK and France paid 24m euros in Calais migrants ISDS case
3-Aug-2015 War on Want
A spokesperson for the company Eurotunnel has revealed that the UK and French governments were required by a private arbitration tribunal to pay out nearly 24 million euros for failing to provide adequate security around the entrance to the Channel Tunnel between 1999 and 2002.
TPP: Australia considers ’modified’ ISDS clause
29-Jul-2015 Financial Review
Australian Trade Minister Andrew Robb says he won’t sign off on investor-state dispute settlement in the Trans-Pacific Partnership "until we’re satisfied that there’s a carve out for public policy on health and the environment,"
Analysis of foreign investment protection in Senegal’s bilateral investment treaties
29-Jul-2015 PressAfrik
Is Senegal providing a disproportionate level of protection to foreign investors through BITs?
El Salvador: “Arbitration with Pacific Rim has cost the State $12.6 million”
28-Jul-2015 El Salvador
Luis Parada, a lawyer with the law firm Foley Hoag, is optimistic that the company, Pacific Rim, will not prevail in the proceedings.
Canada’s Gabriel Resources files international arbitration suit against Romania
22-Jul-2015 Mining Weekly
Gabriel Resources has filed a request for arbitration before the World Bank’s International Centre for Settlement of Investment Disputes against Romania over the Roşia Montană gold/silver project,
ACFI Brasil-Angola (2015)
20-Jul-2015 Ministério das Relações Exteriores do Brasil
Statement by Bechtel on Dabhol settlement
19-Jul-2015 Bechtel
In exchange for $160 million in compensation for its equity and contractor claims, Bechtel agreed to forgo international arbitration over the expropriation of its investment.
Gold mining company that sued Costa Rica files for bankruptcy
16-Jul-2015 Tico Times
Zombie mining company that tried to sue Costa Rica for US$1 billion in lost profits folds.
How global trade agreements undermine sustainable business: The American Sustainable Business Council perspective
15-Jul-2015 Just Means
The American Sustainable Business Council explains that the point of greatest concern in TPP, TTIP and especially the TiSA agreement is the proposal to allow corporations to sue governments in an international tribunal.
The position of REDES – AT Uruguay on the recent ICSID decision
13-Jul-2015 REDES - AT
Devastating news for Uruguay and the WHO Framework Convention on Tobacco Control
Alba establishes mechanisms for legal defense against arbitral claims filed by transnationals
9-Jul-2015 ADITAL
The Bolivarian Alliance for the People of Our America (ALBA ) has agreed to create a new regional mechanism to provide a collaborative defence in international arbitration proceedings, notably in respect of claims filed by transnational corporations against Latin American countries.
9 ways the TPP is bad for developing countries
8-Jul-2015 Foreign Policy
Oone issue that has received comparatively little attention is how the Trans-Pacific Partnership is likely to impact the developing countries slated to join.
MEPs urged to vote against TTIP deal
8-Jul-2015 The National
MEPS are being urged to reject a controversial trade agreement between the US and the EU when a report on the deal is voted on today in the European Parliament.
EP chief brokers internal deal on US trade court
8-Jul-2015 EU Observer
The European Parliament’s proposed ISDS-lite, which some say was concocted by Merkel’s office, goes to non-binding vote today
Editorial: New Zealand must tread carefully on Trans Pacific Partnership
6-Jul-2015 The Dominion Post
New Zealand needs to be ready to walk away from the Trans Pacific Partnership, says The Domion Post, worried about the impact of its drug patenting rules and investor-state dispute settlement mechanism.
Investor vs. State
3-Jul-2015 Policy Alternatives
Canada is being pummeled by NAFTA corporate lawsuits. Why do we put up with it?
Maximising investment protection in Africa: the role of investment treaties and investment arbitration
3-Jul-2015 Lexology
In recent years, many African governments have made an effort to improve foreign investors’ protections by entering into many BITs and related agreements with non-African countries
What’s at stake: South Korea vs Lone Star Funds
30-Jun-2015 Wall Street Journal
For those uninitiated in the world of international arbitration, below is the primer of the issues at play in the South Korea-Lone Star Funds arbitration.