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.
UK-based Cairn Energy Plc has threatened that it may be forced to begin attaching Indian assets including bank accounts in different world capitals, unless the government resolves the issue.
The owner of Keystone XL — TC Energy (previously TransCanada) — used NAFTA to launch a US$15 billion lawsuit in 2016 after President Barack Obama cancelled the project.
One of the most noticeable facts in recent ISDS is the spectacular inflation of compensation awarded to investors. The most important factor is probably the widespread use by tribunals of the DCF (discounted cash flows) valuation method.
Investors have written to the Indian government as well as the governments of the US and UK seeking adherence to the award of a tribunal at the Permanent Court of Arbitration in The Hague
Nuevo Pudahuel had asked the Ministry of Public Works to extend the term of the concession contract as a result of the pandemic, but the MOP was closed to changes in the contract.
The battle between ConocoPhillips and Vietnam result could mark a significant shift in the way huge multinationals fight off the threat of taxes from desperate revenue authorities in developing countries.
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
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.
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’.
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.
The Investor-State Dispute Settlement process has gone against developing countries for far too long.
Draft text shows Beijing looked to withhold telecoms sector benefits to firms from countries with restrictions on Chinese telecoms companies.
Law firms have been drawing investors’ attention to how they could pass their Covid-19-related losses onto states.
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.
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.
Important issues raised by CETA deserve more than a ludicrous 55-minute parliament debate.
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.
In 2020, foreign investors filed at least 51 known cases demanding huge sums from governments struggling to fight a historic pandemic.
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.
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.