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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.

The risk of investor-state disputes in Asean in the aftermath of Covid-19
8-Jul-2020 The Business Times
The current pandemic, and the treaty claims which are likely to stem from it, are a reminder of the importance for ASEAN to be engaged in ongoing discussions at the United Nations of possible reform of the system of investment treaty arbitration.
Revisiting BITs in the wake of Covid-19
7-Jul-2020 Financial Express Bangladesh
Amidst the global risk of ISDS claims, it is incumbent to shed light on Bangladesh’s BIT structure and its feasibility to confront ISDS claims in the backdrop of Covid-19 regulatory space.
Organization in charge of Jeju Yerae Residential Resort Complex to pay over US$100 million to Malaysia’s Berjaya Group
7-Jul-2020 Hankyoreh
Berjaya is to receive US$104.3 million and to withdraw the notice of intent that it submitted to seek investor-state dispute settlement arbitration for a sum of US$3.42 billion.
EU must end investment protection in the fossil sector
6-Jul-2020 Euractiv
The Energy Charter Treaty, which dates back to the 1990s, severely restricts Europe’s ability to change regulations in the energy sector, with many EU member states facing court actions worth billions of euros, write a group of MEPs.
Chinese investments enjoy treaty protection. Beijing can drag New Delhi to tribunals
6-Jul-2020 The Print
India has a Bilateral Investment Treaty with China since 2007. The treaty provides foreign investors the right to fair and equitable treatment.
Civil society groups sound alarm over COVID-19 claims in ’corporate courts’
5-Jul-2020 Civil society groups sound alarm over COVID-19 claims in ’corporate courts’
Countries could be facing a wave of cases from transnational corporations suing governments over actions taken to respond to the Covid pandemic using a system known as investor-state dispute settlement, or ISDS. Some 630 organisations from across the world, representing hundreds of millions of people, are calling on governments in an open letter to urgently take action to shut down this threat.
Countries serious about climate change should leave the Energy Charter Treaty, says former ECT official
3-Jul-2020 bilaterals.org
Interview with Yamina Saheb, former head of unit in the Energy Charter Treaty Secretariat .
Prairie Mining secures litigation funding to sue Poland
2-Jul-2020 ShareCast
The claims had arisen out of certain measures taken by Poland, allegedly in breach of the Energy Charter Treaty and the Australia-Poland Bilateral Investment Treaty.
Morocco’s new model BIT: Innovative features and policy considerations
1-Jul-2020 IISD
In the face of the increasing number of claims brought by investors against host states on the basis of BITs and the exorbitant amounts awarded to investors, Morocco has undertaken a review of its model BIT using a flexible and rational approach.
Potential ISDS problems post Covid-19
29-Jun-2020 Scoop
The Transpacific Partnership Agreement involves investor - state dispute settlement clauses, which large companies may use ISDS to sue governments for actions they took to stop the spread of the virus.
What is Dubrovnik today?
26-Jun-2020 TNI
A golf course, free-trade agreements, and the fight for the soul of a city
Open letter to governments on ISDS and COVID-19
25-Jun-2020 S2B Network
We urge you to take immediate action to ensure that the duty of governments to regulate in the public interest is safeguarded and put beyond the scope of ISDS claims.
Foreign investment, knowledge and international arbitration: inside a research trip
22-Jun-2020 IIED
International investment law and investor dispute arbitration too often fail to notice the concerns of local actors. Governance of these international mechanisms needs to take a more holistic, development-based view of the issues.
NextEra wins millionaire renewables lawsuit against Spain
18-Jun-2020 The Corner
The ICSID has lifted the suspension on the execution of the €290 million award NextEra obtained a year ago.
Ray of hope for Reko Diq penalty being nixed
15-Jun-2020 The Express Tribune
Pakistan’s chances of having its $6 billion penalty in the Reko Diq case annulled have received a boost with a committee of the International Centre for Settlement of Investment Disputes (ICSID).
Preparing for the COVID aftermath
11-Jun-2020 World Commerce Review
Arbitration cases due to COVID emergency measures would exacerbate the challenges that public budgets are already facing due to the need for stimulus measures and the difficulty in collecting government revenue.
Africa should resist acceding to the Energy Charter Treaty
11-Jun-2020 Daily Monitor
Joining the Energy Charter Treaty could cost developing countries money that is urgently needed to fight Covid-19 and a loaming economic crisis. The Energy Charter Treaty has become increasingly controversial.
Survival clause under Aus-Indo bit will not survive the implementation of IA-CEPA
10-Jun-2020 Lexology
On 5 February 2020, Australia and Indonesia signed an exchange of letters agreeing to the termination of the Aus-Indo BIT and its sunset clause.
Why we need a moratorium on investment disputes during COVID-19
10-Jun-2020 The Hill
We call for a moratorium on investor-state arbitration cases and clarity of legal principles to ensure that governments have the policy space to protect their citizenry and combat the epidemic.
EU Commission launches public consultation on protection of intra-EU investment
9-Jun-2020
The EU Commission has launched a public consultation calling for comments on its initiative to improve the protection of intra-EU investment. This initiative could lead to the adoption of new rules enhancing investors’ rights vis-à-vis EU Member States and to the creation of new enforcement mechanisms for investors within the EU.