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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.

Pakistan seeking relief from $5.8B fine over mining lease
9-Sep-2020 New York Times
Pakistan is seeking the reversal of a $5.8 billion penalty imposed by an international tribunal for denying a mining lease to an Australian company, saying that paying the fine would hinder its handling of the coronavirus pandemic.
‘Obsolete’ Energy Charter Treaty must be reformed or ditched, lawmakers say
8-Sep-2020 Euractiv
The 1991 Energy Charter Treaty must be profoundly overhauled in order to remove all “obsolete” provisions protecting fossil fuel investments and hindering climate action, lawmakers from across Europe said.
Japan blocks green reform of major energy investment treaty
8-Sep-2020 Climate Change News
The Japanese government is blocking reform of a treaty that allows energy companies to sue nation states when climate policies affect their profits.
How the little-known Energy Charter Treaty is holding environmental policy hostage
7-Sep-2020 Equal Times
Is it possible to take urgently needed action on climate change while simultaneously protecting the fossil fuel industry, the very cause of climate imbalance?
Investor-state claims in era of COVID-19 pandemic
4-Sep-2020 International Law Office
With state measures in response to COVID-19 being compounded by an already difficult economic environment for investors, they may have little choice but to challenge those measures.
Mining companies dominate ISDS treaty-shopping claims from Australian companies
3-Sep-2020 AFTINET
Australia, with its many Bilateral Investment Treaties and FTAs, contributes to a system of treaty shopping by mining companies looking to sue governments over unfavourable decisions.
Australian government to review its Bilateral Investment Treaties
3-Sep-2020 Lexology
The Australian Federal Government has announced it is reviewing the bilateral investment treaties (BITs) to which Australia is a party.
Maharashtra govt’s plan to reinvite bids for Dharavi project may hit legal hurdle
2-Sep-2020 The Economic Times
Seclink Technologies, funded by the royal families of the United Arab Emirates and Bahrain, plans to seek arbitration over the issue under the Bilateral Investment Promotion Protection Agreement.
Zimbabwe is offering land back to BIPPAs and black farmers. Betrayal or the law? Here are the facts
2-Sep-2020 The Zimbabwe Mail
There are only two types of farmers that can be compensated for both land and improvements on farms. On of them is farmers whose land was protected by Bilateral Investment Protection and Promotion Agreements.
Barrick to appeal lost challenge over PNG mining rights
1-Sep-2020 Reuters
Barrick Gold Corp has lost a court challenge in Papua New Guinea over rights to a highlands gold mine and intends to appeal to the country’s Supreme Court.
Knezevic warns Darmanovic he will sue the state before the international court of arbitration
31-Aug-2020 Total Montenegro News
Knežević and the Atlas Group’s affected companies have the right to initiate arbitration proceedings against Montenegro, according to the arbitration rules of UNCITRAL, ICC or ICSID.
Barrick to fight PNG’s attempt to grant Porgera lease to state-backed miner
28-Aug-2020 Mining.com
Canada’s Barrick Gold said it would challenge the Papua New Guinea government alleged move to grant a 20-year lease for the Porgera gold mine to a state-backed firm.
Investor-state disputes arising from COVID-19: balancing public health and corporate wealth
28-Aug-2020 Corrs Chambers Westgarth
In response to the COVID-19 pandemic, governments globally are engaging in a difficult balancing act of protecting public health, mitigating economic damage and avoiding interference with private rights.
Bridgestone V. Panama
27-Aug-2020 Global Legal Chronicle
The US subsidiaries of Bridgestone Corporation lost a $20 million plus arbitration claim against the Republic of Panama filed by under the US-Panama Trade Promotion Agreement.
Mining injustice through international arbitration
25-Aug-2020 Earthworks
El Tambor is a controversial gold mining project in Guatemala. After years of local protests and litigation, it was halted in 2016 for lack of prior consultation with Indigenous people.
Juggling crisis
24-Aug-2020 TNI
Latin America’s battle with COVID-19 hampered by investment arbitration cases.
BITs and bonds: The international law and economics of sovereign debt
20-Aug-2020 SSRN
Recent jurisdictional decisions suggest that sovereign debt will be subject to bilateral investment treaties for the foreseeable future.
ISDS enables making more money from losses
18-Aug-2020 IPS
Predatory international law firms are encouraging multimillion-dollar investor-state dispute settlement (ISDS) lawsuits citing Covid-19 containment, relief and recovery measures.
Global firms expected to sue UK for coronavirus losses
16-Aug-2020 The Guardian
Governments around the world – including the UK – face a wave of lawsuits from foreign companies who complain that their profits have been hit by the pandemic.
Investment disputes from below: whose rights matter?
14-Aug-2020 IIED
Mining, environment and livelihoods in Colombia.