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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.

New report exposes mining companies suing Latin American countries where communities defend land and environment
2-May-2019 Mining Watch
We analyzed 38 multi-million dollar claims brought by the mining industry using ISDS and other investment protection laws; in over half, communities are fighting to protect Indigenous territory, water, and more.
Canadian mining companies are behaving badly in the Global South—and Wall Street is profiting from it
2-May-2019 Behind the Numbers
Canadian investors have frequently used the ISDS system to pursue their commercial interests abroad—too often to challenge responsible government policies taken in the public interest in developing countries.
Compatibility with EU law is not real issue with ISDS
30-Apr-2019 EU Observer
But legality should not be our main concern here. There are much better approaches to international investment and we should be considering them.
EU top Court misses opportunity to protect democracy in EU-Canada trade ruling
30-Apr-2019 Client Earth
In a disappointing judgment, the Court of Justice of the EU (CJEU) has ruled today that the investment court system in the Canadian EU trade agreement (CETA) is compatible with EU law.
The ECJ verdict changes nothing – ISDS may not be illegal but it is immoral
30-Apr-2019 Stop ISDS
The judgement is disappointing but The case against ISDS (or its rebranded version ICS) has never been primarily a legal one. It is a moral one.
French firm Suez settles one of two disputes with Argentina for €220 million
26-Apr-2019 Buenos Aires Times
French water and waste management company receives compensation from the government, settling one of its legal disputes with country dating back to Néstor Kirchner’s presidency.
Kenya’s foreign trade disputes costly - experts
26-Apr-2019 The Star
Kenya spends at least Sh500 million in defending a single case filed by investors at international courts under the Bilateral Investment Treaties, according to a regional trade negotiation institute.
Over 200 organizations denounce multimillion dollar suit brought by US mining firm against Guatemala
25-Apr-2019 YubaNet
The company filed the suit in December 2018 for alleged violations of the Central America–Dominican Republic Free Trade Agreement (CAFTA-DR).
Nord Stream 2 invokes Energy Charter Treaty to challenge EU gas link rules
25-Apr-2019 S&P Global
EU plans to extend its internal energy market rules to Russia’s Nord Stream 2 natural gas link to Germany could breach the Energy Charter Treaty, which protects international investors, according to the Swiss-registered company building it.
Rosia Montana: Seeds of utopia in town almost lost to gold mining
24-Apr-2019 Al Jazeera
In 2015, Gabriel Resources sued Romania before of the ICSID, asking for a reported four billion dollars in damages, after protests halted plans for Europe’s largest gold mine.
How trade agreements stand in the way of an international green new deal
23-Apr-2019 In These Times
To reduce emissions abroad, the US must renegotiate its trade agreements.
US company’s attempt to sue Australian government collapses
23-Apr-2019 The Guardian
Florida-based APR Energy sought compensation for treatment of its gas turbines.
Rental power: Government in talks for out-of-court settlement
22-Apr-2019 Business Recorder
Pakistan government is reportedly in talks with the Turkish government and M/s Karkey for an out-of-court settlement to avert attachment of Pakistan’s properties in Europe
Aborted for-profit hospital
18-Apr-2019 Korea Times
The Jeju provincial government has revoked the business license of a Chinese-owned for-profit hospital. The Chinese group may file a suit against the Korean government, using the investor-state dispute settlement system.
Venezuela’s Guaido to seek to annul $8.7 bln Conoco award
17-Apr-2019 Reuters
Guaido’s special prosecutor said has challenged the amount of the ICSID award, claiming “the methodology to determine the compensation was errant.”
Pakistan may not have to pay $1b Karkey penalty
16-Apr-2019 The Express Tribune
The key suspect in the rental power plants case – Laeeq Ahmed Sheikh, who is in National Accountability Bureau’s (NAB) custody, has revealed some astonishing facts.
Government concealed failure to cancel the old, worse version of ISDS in new Indonesia trade deal
11-Apr-2019 AFTINET
Detailed scrutiny of the text of the recent Indonesia trade deal has revealed that there are no provisions to cancel the old 1993 Indonesia-Australia bilateral investment agreement.
We the people reject ISDS. So why are our governments trying to expand it?
9-Apr-2019 Stop ISDS
A permanent Multilateral Investment Court pushed by the European Union could make ISDS worse by scaling it up.
Corbella: Notley’s ’beating down’ of the oil patch should cost her the election
9-Apr-2019 Calgary Herald
The Czech-based company Petrolama Namur Oil Sands Exploration filed a notice of dispute against Canada on March 29 over the delay in completing the expansion of the Trans Mountain pipeline.
As the world meets to discuss ISDS, many fear meaningless reforms
8-Apr-2019 TNI
ISDS lawyers appear to hold administrative positions within the working group and are represented in large numbers in the advisory bodies that have been established for the working group.