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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.

Threats to NAFTA cast doubt over Mexico’s oil tenders, investment
4-Nov-2017 Reuters
Energy firms worry the end of NAFTA could eliminate the so-called Investor State Dispute Settlement.
NZ ambassadors pushing for ISDS change
3-Nov-2017 Newsroom
The Government is enlisting its ambassadors in a last-minute bid to win changes to the TPP’s controversial investment clauses, Trade and Export Growth Minister David Parker says.
Going south? EU and Australia/New Zealand deal
31-Oct-2017 EU Observer
The Commission is currently gearing up to begin negotiating separate deals with Australia and New Zealand.
NZ to ban foreign buyers of existing homes
31-Oct-2017 Scoop
Prime Minister Jacinda Ardern announced plans to effectively ban foreign buyers of existing residential property but says the prohibition doesn’t put New Zealand at odds with the slimmed down version of the Trans-Pacific Partnership deal.
Top US trade official opposition to ISDS in NAFTA undermines case for ISDS in TPP-11
30-Oct-2017 AFTINET
US Trade Representative Robert Lighthizer said that the US wants to opt out of ISDS in NAFTA, because of the risk and costs of US governments being sued by foreign corporations, and despite corporate lobby groups pushing to retain ISDS.
A court to fix all investor-state rows?
30-Oct-2017 The Hindu
Hit by disputes with Vodafone and Cairn Energy, India welcomes plan for a World Court but flags legal, practical challenges.
Notice of intent to submit claim to arbitration under Korea-United States free trade agreement chapter 11
25-Oct-2017 Minister of Trade, Industry and Energy of Korea
First ISDS case against South Korea under Korea-US FTA.
Responsible investment provisions in international investment treaties: where next?
23-Oct-2017 IIED
How international investment treaties could promote more responsible investment and argues that, while some innovative practices are emerging, there is still much to do.
African Petroleum seeks arbitration over Gambia oil dispute
19-Oct-2017 Reuters
African Petroleum Corp has begun arbitration proceedings over Gambia’s decision to strip the company of its rights to explore for oil in two offshore areas.
5 hidden costs of the RCEP to people and planet
17-Oct-2017 The Diplomat
The RCEP has hidden costs for people’s lives
US proposes gutting Nafta legal-dispute tribunals
16-Oct-2017 Bloomberg
US Nafta negotiators are proposing to essentially do away with the independent tribunals that oversee the trading and investment relationship.
BoI working on its own template for BIT
16-Oct-2017 Business Recorder
The government of Pakistan would not be made liable for private investor disputes. Alternative dispute resolution mediation would be made compulsory, while foreign arbitrators would be decided in advance through consensus.
Invenergy says to take USD-700m Polish wind claim to intl arbitration
16-Oct-2017 Renewables Now
US clean energy company Invenergy LLC has notified the Polish authorities it plans to turn to international arbitration over its wind investments in the country, if no settlement is reached within six months.
RCEP: Robbing communities to extract profit
14-Oct-2017 APWLD
RCEP will give multinational corporations unprecedented rights
Multilateral Investment Court: an utterly flawed and unjust system
12-Oct-2017 EurActiv
The European Commission’s plans for a Multilateral Investment Court sanctions a biased and ineffective arbitration system, leaving people and the environment exposed to international investors’ whims.
Karuturi contemplates legal recourse for loss in Ethiopia
11-Oct-2017 The Reporter
Karuturi could sue the government of Ethiopia at international tribunals on the basis of violations of the Bilateral Investment Protection Agreement India and Ethiopia have signed on.
What to do with "fair and equitable treatment" provisions?
11-Oct-2017 IELP Blog
US ISDS proposal in NAFTA would cut fair and equitable treatment and indirect expropriation.
Tanzania edges closer towards total mine nationalisation
5-Oct-2017 Mining Review Africa
New laws revolve around the notion that Tanzania’s domestic law is to be supreme over any international dispute or arbitration decision.
Mexico offers to match oil groups’ Nafta wish
28-Sep-2017 Argus
Mexico is considering writing into law investor-state dispute settlement provisions contained in the North American Free Trade Agreement (Nafta) to reassure US and Canadian investors in its energy sector.
A look into China’s slowly increasing appearance in ISDS cases
27-Sep-2017 IISD
Recent decades have been marked by China’s economic, military and diplomatic rise, and its increasing integration into the international order.