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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.

Why is Malaysia still committed to the CPTPP fraud?
7-Aug-2020 Malaysiakini
It is now abundantly clear that the CPTPP has not only proved irrelevant in the face trade protectionism but would actually strengthen IPRs, raising the costs of Covid-19 tests, treatments and vaccines.
US glass maker seeks to seize Venezuela-owned oil tanker to collect award, court papers show
6-Aug-2020 Reuters
US glass manufacturer O-I Glass Inc is seeking to seize an oil tanker owned by Venezuela to collect part of a $500 million arbitration award it won.
Canadian miner’s multi-million dollar suit against Kazakhstan dismissed
6-Aug-2020 Mining.com
An international tribunal has dismissed a nearly $1 billion claim against Kazakhstan brought by a Canadian junior miner over a botched deal to operate gold mines in the country.
Zimbabwe to pay white farmers $3.5 billion over Mugabe land reforms
5-Aug-2020 The East African
Some of the dispossessed farmers were from countries such as Germany, Netherlands and Switzerland whose properties were protected by investment treaties between Harare and the Western countries.
Lupaka secures financing for its arbitration claim under the Canada-Peru free trade agreement
5-Aug-2020 GlobeNewswire
Lupaka Gold Corp. reports that it has entered into an arbitration funding agreement for up to USD$4.1 million to support the company’s arbitration claim against Peru.
Japan and UK may forgo dispute settlement system in trade deal
28-Jul-2020 The Japan Times
Japan and the U.K. are studying a plan of not including an investor-state dispute settlement (ISDS) system in the bilateral trade deal they are currently negotiating.
Indian dry bulk terminal business of French group Louis Dreyfus Armateurs collapses
23-Jul-2020 Hindu Business Line
ALBA Asia Pvt Ltd, the Indian dry bulk port operating company controlled by French shipping group Louis Dreyfus Armateurs SAS (LDA), has collapsed with state-run Visakhapatnam Port Trust terminating a contract for running a dry bulk terminal at the port just five years into a 30-year deal.
MPs try to block corporations using new trade deals for lawsuits
21-Jul-2020 Independent
MPs are set to try to force the government to block corporate lawsuits relating to future trade deals, in a bid to safeguard human rights.
Green NGOs demand EU dumps controversial energy treaty
14-Jul-2020 EU Observer
Green groups have renewed their demand for the EU and member states to jointly withdraw from the controversial Energy Charter Treaty (ECT).
A Canadian mining company is threatening to sue Mexico to avoid paying taxes... and is asking Canada to help them do it
13-Jul-2020 Council of Canadians
Already, Mexico’s progressive reforms have made it an ISDS target. First Majestic, a Canadian silver mining company has been threatening Mexico for the last few years, under NAFTA’s Chapter 11.
Barrick Gold sends dispute notice to Papua New Guinea over Porgera mine
10-Jul-2020 Reuters
Canadian miner Barrick Gold Corp said it served a dispute notice to the Papua New Guinea government over the country’s refusal to extend a mining lease in the Porgera valley.
The obscure treaty that could kill a global green recovery
9-Jul-2020 The New Republic
The Energy Charter Treaty, with 53 signatories, allows energy companies to sue states that make their business unprofitable.
Corporations to sue states for pandemic billions
9-Jul-2020 The Ecologist
Corporations are busy weaponising obscure legal instruments to sue government for their actions to save lives and jobs during the coronavirus crisis.
Investor-state dispute settlement in Africa and the AfCFTA Investment Protocol
8-Jul-2020 Tralac
With the growing concern over the traditional ISDS system, it is highly unlikely that the AfCFTA will include an ISDS mechanism giving investors access to go to international arbitration under conventional international tribunals.
PAW2020: The future of ISDS in Africa
8-Jul-2020 African Law Blog
African states need to take a unified and proactive approach to investor-state dispute settlement (ISDS), in order to make a system that is fairer to Africa and more consistent.
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.