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.
Mining group Pathfinder Minerals said a dispute over the ownership of a mining title in Mozambique could see it incur estimated losses of more than $621.3 million.
Cairn Energy has offered to invest the entire award money in India, which includes the principal amount of $1.2 billion and interest of $500 million if the government agrees to enforce the award.
For many people affected by resource extraction, it is the prevailing legal regime that dis-embeds and disintegrates, because investment treaties can protect ventures that upend their lives with little scope for voice or redress.
From colonisation to investor-state dispute settlements, rich countries have sought to exploit and influence their poorer counterparts for centuries, but how did globalisation in its current form come to be?
Private insurance corporations are suing Argentina and Bolivia for loss of potential profits as a result of the reversal of privatization of pension programs.
Referring repeatedly to legal threats by Barrick Gold Corp., Prime Minister Papua New Guinea released a statement announcing that his government will be making a deal with the company in regard to the Porgera Joint Venture gold mine.
Investment treaties largely replaced colonial gunboats as a way to continue to exploit the resources of foreign countries.
Corporate courts are an unjust mechanism that can block climate action. The UK should reject them.
The overreach on display in the aggressive use of ISDS lawsuits by multinational corporations is just one part of a broader trend in recent decades in which the ability of states to regulate their economies in their own interests.
Pakistan has reportedly decided to scrap most of its existing Bilateral Investment Treaties as these pacts are shrinking the government’s policy space with respect to adopting measures of public interest.
The company has appointed a leading international law firm to advise the company of its legal options, and in particular, the Australian Bilateral Investment Treaty.
The British company pursues its investment treaty claim under the UK-Slovenia bilateral investment treaty and the Energy Charter Treaty.
An improbable victory in El Salvador offers lessons for grassroots activists worldwide.
India is believed to have challenged in a court in The Hague an arbitration tribunal verdict that overturned its demand for ₹10,247 crore in back taxes from Cairn Energy Plc — the second time in three months that it has refused to accept an international award against retrospective tax.
The Egyptian Ministry of Petroleum and Mineral Resources announced the entry into force of the agreement related to the Damietta Liquefaction Plant, and the settlement of all claims.
India has time till mid-April to file an appeal against an international arbitration tribunal ordering it to repay UK’s Cairn Energy Plc USD 1.2 billion-plus interest and cost, but the challenge can only be on limited grounds such as procedure not being followed.
Only 21% of cases administered by ICSID involve African investors, however, this may change with the introduction of AfCFTA, and we may begin to see more disputes involving African investors and African states.
How investment treaties and investor-to-state dispute settlement grant foreign investors greater rights than Dutch and EU law.
Besides protection and dispute settlement, the BIT also includes several key changes in terms of application and restriction.
To realise a future beyond fossil fuels, it is imperative to look at how to disentangle the legal shackles that enable companies to frustrate climate policy and shift the burden of their stranded assets onto the shoulders of taxpayers through arbitration claims.