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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.

Thai Prime Minister under fire over reopening of Australian gold mine
8-Feb-2022 The Sydney Morning Herald
The mine was shut amid accusations of villagers being poisoned by leaking toxic waste. Kingsgate, whose Thai subsidiary Akara Resources had operated the mine since 2001, filed an international arbitration lawsuit.
Primer on international investment treaties and investor-state dispute settlement
4-Feb-2022 CCSI
While reforms are being discussed, investors will continue to bring, and states will continue to defend, claims in an ISDS system now widely recognized as suffering from perceived and actual concerns going to its very legitimacy.
Mexico seeks to settle $1.1 bln Vulcan suit over limestone mine closure
4-Feb-2022 Reuters
The Mexican government said on Thursday that it is negotiating the settlement of a $1.1 billion lawsuit by Vulcan Materials Co over a government effort to shutter its limestone mine.
Devas shareholders move another arbitration
4-Feb-2022 The Hindu
The shareholders are seeking compensation commensurate with an arbitration award of $1.3 billion and have demanded that since Devas has been wound up, India must pay the award directly to the claimants.
Huawei takes Sweden to court following 5G ban
31-Jan-2022 Dunya News
Huawei said that it has initiated arbitration proceedings against Sweden under the World Bank Group after the Nordic country banned the Chinese tech giant from rolling out its 5G products.
UK, Switzerland accused of undermining EU green treaty reforms
26-Jan-2022 Climate Home News
Campaigners say the UK and Switzerland are defending fossil fuel interests in Energy Charter Treaty modernisation talks to tempt firms to relocate their HQs.
Investor–state disputes in the fossil fuel industry
24-Jan-2022 IISD
The fossil fuel industry is the most litigious industry in the ISDS system by number of cases, accounting for almost 20% of the total known ISDS cases across all sectors.
‘Breakthrough’ as Pakistan, TCC agree over share in Reko Diq case
21-Jan-2022 Ary News
Pakistan and Tethyan Copper Company (TCC) have agreed over 50 percent shares, likely paving way for averting a multi-billion-dollar fine imposed on Pakistan.
Energy Charter Treaty claim pushes Slovenia to weaken fracking rules
17-Jan-2022 Friends of the Earth Europe
A new example of how this secretive corporate court system is undermining climate and environmental policies of EU member states has been brought to light.
Cop26 targets pushed back under threat of being sued
17-Jan-2022 Capital Monitor
Countries party to the Energy Charter Treaty are under yet more pressure to reform the agreement following the Cop26 climate summit, as they weigh the benefits of climate action against the likelihood of getting sued.
Romania wins EUR 2 bln dispute at ICSID against Romanian-Swedish investors Micula
6-Jan-2022 Romania-Insider
A committee attached to the Washington International Court (ICSID) definitively rejected the €1.8 bln claims of Romanian-Swedish investors Ioan and Viorel Micula.
Devas seizes $6.8 million worth of AAI property in Canada
3-Jan-2022 The Hindu
The shareholders had sought the right to seize all sum or moveable property of India and/or AAI being held by the International Air Transport Association.
Balochistan MPAs ‘satisfied’ over Reko Diq pact
3-Jan-2022 The Express Tribune
Pakistan federal govt officials tell lawmakers talks under way that may pave way for TCC’s Barrack to resume project.
Chile’s Codelco requests second arbitration against Ecuador over copper project
3-Jan-2022 Reuters
Chile’s state-controlled Codelco requested a second international arbitration process with Ecuador and its National Mining Company (Enami EP) over the Llurimagua copper project.
Enagás redoubles its fight with the Peruvian Government to recover 400 million invested in a gas pipeline
3-Jan-2022 Market Research Telecast
Enagás considers that the future dividends of this project amount to 186 million dollars that would be added to the almost 400 million that it hopes to recover from the other arbitration.
They concern you more than you know: On the perils and potential of international investment agreements for the Agreement on Trade-Related Aspects of Intellectual Property Rights and COVID-19 discussions at the World Trade Organization
23-Dec-2021 IISD
Talks on a possible COVID-19-related TRIPS decision aimed at scaling up vaccine and therapeutics production and equitable distribution continue but investment agreements are absent from them.
Energy Charter Treaty: stalled reform fuels EU fears for climate
21-Dec-2021 Investigate Europe
European governments are losing patience in talks to modernise the controversial Energy Charter Treaty (ECT), according to leaked documents.
Croatia to pay €40m to US investment company to settle 20-year-old dispute
17-Dec-2021 N1
The Croatian government okayed the out-of-court settlement between Croatia and the American Colgate McCallum investment management company, which will see Croatia pay €40m to the company.
Investment governance in Africa to support climate resilience and decarbonization
13-Dec-2021 Afronomics Law
African nations should not be expected to take the lead in addressing a climate emergency they did not create. The priority for Africa is to receive support and investment to build resilience and adapt to climate impacts.
EU in battle with its own states as it threatens countries with court over bilateral deals
6-Dec-2021 Daily Express
The EU Commission has launched infringement proceedings against seven member states over their failure to end intra-bilateral investments agreements.