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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.

Canada scrambles to salvage Keystone XL as Biden prepares to kill troubled pipeline project
19-Jan-2021 Reuters
Alberta believes there was a “very solid” legal basis to seek damages under international free trade agreements if the pipeline is effectively killed, said Alberta Premier
Mining operations – Submission of request for international arbitration to Chinese government
18-Jan-2021 AsiaPhos
AsiaPhos has been in discussion with the Chinese Government (since November 2017) for a settlement in relation to the cessation of the mining activities because of the Panda Park.
TNCs reviving TPP Frankenstein
18-Jan-2021 Financial Express Bangladesh
Corporate globalisation and Covid-19 should also have taught developing countries that they must reject FTAs strengthening IPRs, ISDS and TNCs in order to secure policy space to ’build back better’.
Investment protection in the EU-UK trade and cooperation agreement
11-Jan-2021 Kluwer Arbitration Blog
The EU-UK agreement contains limited protections for investors and no investor-state enforcement mechanism. Its dispute resolution mechanism is limited to a “WTO-like” state-to-state arbitration.
Will Pakistan lose New York’s Roosevelt Hotel?
11-Jan-2021 TRT
The Investor-State Dispute Settlement process has gone against developing countries for far too long.
China tried to punish European states for Huawei bans by adding eleventh-hour rule to EU investment deal
11-Jan-2021 South China Morning Post
Draft text shows Beijing looked to withhold telecoms sector benefits to firms from countries with restrictions on Chinese telecoms companies.
The multinationals suing governments over their pandemic response
11-Jan-2021 New Statesman
Law firms have been drawing investors’ attention to how they could pass their Covid-19-related losses onto states.
Chinese investors file arbitration case against Ukraine over Motor Sich investment
18-Dec-2020 Radio Free Liberty
Chinese investors have brought a $3.5 billion arbitration case against Ukraine for blocking the sale of a strategic aircraft engine maker whose fate Washington is closely following.
Clive Palmer could seek ’unquantifiable’ commonwealth compensation under Singapore free trade deal
18-Dec-2020 The Guardian
Australian taxpayers could be on the hook for compensation following a dispute between the Western Australian government and Clive Palmer’s Mineralogy, federal budget papers reveal.
Canada trade deal shows Government’s breathtaking arrogance
17-Dec-2020 The Irish Times
Important issues raised by CETA deserve more than a ludicrous 55-minute parliament debate.
EU-China comprehensive agreement on investment: A scoping study
16-Dec-2020 Heinrich Böll Foundation
Given China’s unique position, the study concludes that the EU must ensure that particularly strong protections for EU regulatory policy space are included in any future investment deal.
Biden’s top trade official should work to protect governments from the rising number of corporate lawsuits
16-Dec-2020 Inequality.org
In 2020, foreign investors filed at least 51 known cases demanding huge sums from governments struggling to fight a historic pandemic.
Energy Charter Treaty reform reaches milestone, with little progress to show
16-Dec-2020 Euractiv
A two-day conference of the 54 parties to the Energy Charter Treaty will attempt to move forward in reforming the little-known charter, decried by environmentalists for protecting fossil fuel investments and blocking international efforts to curb global warming.
Busting myths around the Energy Charter Treaty
15-Dec-2020 TNI
Amidst growing concerns that the ECT undermines urgent climate action, its corporate profiteers, the ECT Secretariat, and others are spewing propaganda, promoting falsehoods about how the treaty attracts clean investment.
Urgent call from international CSO to Ecuador on the Chevron case
12-Dec-2020 Stop Corporate Impunity
150 organizations are asking the government of Ecuador to appeal the arbitration award issued by the Dutch justice system in favor of the oil transnational Chevron.
Philip Morris to soon submit motion to intl arbitration in case of AMCU fine of UAH 1.2 bln
10-Dec-2020 Interfax
Philip Morris Ukraine, a large tobacco manufacturer, will file a motion with the ICSID in response to the decision of the Antimonopoly Committee of Ukraine on a UAH 1.2 billion fine.
Indiana Resources to begin arbitration again Tanzanian govt in Q1, 2021
9-Dec-2020 Mining Review Africa
Indiana Resources expects to begin arbitration with Tanzania over the expropriation of the Ntaka Hill nickel project and other alleged breaches of the UK-Tanzania BIT early 2021.
Russia suffers new blow in $50 billion Yukos case
7-Dec-2020 The Moscow Times
The Netherlands’ top court ruled that shareholders in dismantled oil giant Yukos can continue to pursue Russia for $50 billion in compensation pending a final judgement in a long legal saga.
“It did not go well” - Barrick continues pressure on Papua New Guinea government while ignoring human rights
4-Dec-2020 Mining Watch
Barrick is offering the government of Papua New Guinea to pause legal proceedings upon signing of a framework agreement to reverse the decision not to grant it a licence renewal for its former Porgera mine.
EU Commission could pull out of controversial energy treaty
4-Dec-2020 EU Observer
The European Commission has confirmed for the first time that Brussels could withdraw from the controversial Energy Charter Treaty (ECT), which critics say shields the fossil-fuel industry.