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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.

Fossil fuel companies claiming 18bn against government climate action in secret courts
28-Oct-2021 Global Justice Now
Courts allow big polluters to sue governments into “a state of climate paralysis”, campaigners say.
Reality check on curbing climate change — trade agreements
28-Oct-2021 The Nelson Daily
Rules accepted under various trade and investment agreements often benefit destructive, extractive industries to the detriment of national and international climate goals and ambitions.
Summary to empower BoI for renegotiating BITs gathering dust
25-Oct-2021 Business Recorder
Under the new template, federal government would not be liable for private investor disputes. Mediation would be made compulsory, while foreign arbitrators would be decided in advance through consensus.
‘Pakistan to renegotiate all bilateral investment treaties’
22-Oct-2021 Dawn
Pakistan will renegotiate all bilateral investment treaties (BITs) on the basis of new BIT template being finalised by the government, a top official of the Board of Investment said.
Making sense of Sudan’s move against Petronas
20-Oct-2021 New Straits Times
Sudan’s government confiscated Petronas’s assets on the grounds that they were acquired "through illegal means" during Omar al-Bashir’s regime. Some argue that Sudan is turning on its allies "under the pretext of fighting corruption".
Devas Multimedia eyeing foreign assets of Indian govt to enforce $1.3 bn arbitral award
19-Oct-2021 The Economic Times
Devas Multimedia’s investors are eyeing several properties owned by the Indian government across the world, as they seek to enforce a $1.3 billion arbitral award the satellite company won against Antri.
Another Turkish firm moves ICSID against Pakistan
18-Oct-2021 The Express Tribune
Turkish construction company Bayindir filed a claim under the 1995 Turkey-Pakistan bilateral investment treaty at the ICSID on October 12.
States must stop prioritizing investment over human rights – UN experts
15-Oct-2021 OHCHR
UN experts today called on States to ensure that international investment agreements do not provide a “safe harbour” for investors to abuse the human rights of individuals and communities.
Investor-state arbitration and the ’next generation’ of investment treaties
15-Oct-2021 Lexology
Investor–state arbitration has grown over the years to become one of the most dynamic and controversial features of international investment law.
Petronas files for arbitration over Sudan’s assets seizure
15-Oct-2021 The Malaysian Reserve
PETROLIAM Nasional Bhd (Petronas) has led a request for arbitration at the International Centre for Settlement of Dispute in the absence of positive development on Sudan’s transitional government’s decision to confiscate the company’s assets in Khartoum, Sudan.
Colombia: Environmental defenders criticise ISDS tribunal decision favouring Canadian mining giant
13-Oct-2021 AFTINET
While the tribunal has yet to make a decision about compensation to be paid, Eco Oro Minerals is claiming nearly $700 USD million.
The false hopes and empty promises of investment treaty modernization
13-Oct-2021 The Monitor
A Canadian company’s successful challenge to a precautionary mining ban in Colombia shows how little investor–state dispute panels care about the right to regulate.
Threats, bullying, lawsuits: tobacco industry’s dirty war for the African market
11-Oct-2021 The Guardian
In pursuit of growth in Africa, British American Tobacco and others use intimidatory tactics to attempt to suppress health warnings and regulation, including accusing governments of breaching trade agreements.
New ISDS case map launched (sticky note)
16-Sep-2021
Do international trade and investment agreements generate regulatory chill in public health policymaking? A case study of nutrition and alcohol policy in South Africa
8-Sep-2021 Globalization and Health
Given the potential for wider use of the ISDS mechanism, strategies to protect public health policy space in the context of both international trade and investment treaty and dispute settlement contexts remain important.
Talos Energy files notice with Mexico over disputed oil field
7-Sep-2021 Mexico News Daily
Houston-based Talos Energy intends to fight the decision by the Energy Ministry to designate the state oil company Pemex as the operator of the Zama field, which contains almost 700 million barrels of oil.
Cairn accepts $1 billion refund offer, to drop cases against India within days: CEO
7-Sep-2021 Mint
Cairn Energy will drop litigations to seize Indian properties in countries ranging from France to the US, within a couple of days of getting a $1 billion refund resulting from the scrapping of a retrospective tax law.
New ISDS case map launched
6-Sep-2021
The map is an interactive tool that brings together 60 significant ISDS cases globally to support social movements, researchers, journalists and policy makers to analyse the impact of the ISDS mechanism.
Examining trade disputes in AfCFTA agreement: The need to engage private sector in Nigeria
2-Sep-2021 Vanguard News Nigeria
AfCFTA roundtable brought together business leaders, academia, government representatives, trade, and legal experts to discuss and deliberate on dispute issues in implementing the agreement in Nigeria.
Companies cannot use ECT to sue governments for climate progress, top court says
2-Sep-2021 Client Earth
Environmental organisations have hailed a court decision that could mean the end of a little-known legal mechanism that poses a massive threat to climate action.