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.
Ascent Resources Plc and its subsidiary Ascent Slovenia Ltd have formally notified Slovenia of the existence of disputes under the UK - Slovenia bilateral investment treaty and the Energy Charter Treaty.
COVID-19 can increase liability for countries under international investment treaties. Developing countries face imminent challenges under such treaties.
Nigeria is undertaking series of reforms of the country’s bilateral investment treaties to attract responsible, inclusive, balanced and sustainable investments.
Funding will support legal costs associated with the claim against Tanzania regarding the the expropriation of the Ntaka Hill Nickel Project.
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 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.
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.
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 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 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.
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 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 groups have renewed their demand for the EU and member states to jointly withdraw from the controversial Energy Charter Treaty (ECT).
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.
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 Energy Charter Treaty, with 53 signatories, allows energy companies to sue states that make their business unprofitable.
Corporations are busy weaponising obscure legal instruments to sue government for their actions to save lives and jobs during the coronavirus crisis.
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.
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 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.