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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.

Gold Reserve says awarded $740.3 mln in Venezuela Brisas arbitration
23-Sep-2014 Reuters
The International Centre for Settlement of Investment Disputes (ICSID) determined Venezuela must pay US-based miner Gold Reserve $740.3 million for terminating its Las Brisas gold concession, the company said on Monday.
The international implications of the Philip Morris branding battle in Uruguay
20-Sep-2014 World Trademark Review
Long-running litigation between Uruguay, which has some of the toughest anti-smoking laws in the world, and cigarette giant Philip Morris could have direct consequences for plain packaging legislation globally. Could it also pave the way for legal action in Europe?
Questions linger over controversial Canada-China trade deal
19-Sep-2014 Epoch Times
Canada’s Conservative government is taking heat after Prime Minister Stephen Harper’s cabinet quietly ratified a Bilateral Investment Treaty (BIT) with China after sitting on it for two years during which it was strongly criticized and protested.
New treaty allows China to sue Canada to change its laws
16-Sep-2014 Newsweek
Despite public outcry, Stephen Harper, Canada’s prime minister, ratified a controversial treaty on Friday that will allow China to sue Canada in secret tribunals to repeal Canadian laws that interfere with Chinese investments.
Strategy conversations: From protest to proposal – Launch of alternative proposal to the global investment regime
14-Sep-2014 NJGI
‘A Call for the Building of an Alternative Legal Framework to the International Investment Treaties. Favoring the Public Interest while doing away with Transnational Corporate Impunity.’
ISDS: The devil in the trade deal
14-Sep-2014 ABC
A common provision allowing foreign investors to sue host governments has become a ticking time bomb inside trade agreements. Some countries are now refusing to agree to the provision and are questioning its legal legitimacy. Jess Hill investigates.
How Greens in one German state threaten Euro-Canada trade deal
12-Sep-2014 The Tyee
The survival of the new trade deal hammered out in secret between Canada and the European Union is threatened by opposed Green politicians in Germany’s most populated state, writes Andrea Rexer.
Ask Foreign Policy Ministers to exempt ISDS from CETA open letter
10-Sep-2014 EarthMedia
Please find below a draft letter to heads of state or trade ministers of EU Member States. It can be sent ahead of the Sept .12 meeting of the EU Trade Policy Committee where Member States have the *final* opportunity to comment on the CETA text.
CETA leak: Crucial questions unanswered
29-Aug-2014 The Tyee
Latest version of trade deal leaves too much up to non-existent commission, lawyers say.
Trade treaties expose Australia to costly litigation, experts warn
29-Aug-2014 WA Today
Australia risks getting swept up in a wave of litigation by foreign corporations wishing to sue over unfavourable domestic laws, experts warn, after the government rejected a bill to ban controversial trade agreements.
Inquiry rejects ban on ISDS clauses in free trade agreements
29-Aug-2014 Computer World
A Senate inquiry has recommended against passing a bill that would bar Australia from entering into trade agreements that include so-called ’investor-state dispute settlement’ clauses.
European lawmakers threaten to scupper Canada trade deal
28-Aug-2014 Reuters
EU lawmakers are threatening to block a multibillion-dollar trade pact between Canada and the European Union – a blueprint for a much bigger EU-US deal – because it would allow firms to sue governments if they breach the treaty.
Newmont withdraws mining arbitration case against Indonesia
28-Aug-2014 Reuters
Newmont Mining Corp has withdrawn an international arbitration filing against the Indonesian government, government and company officials said on Tuesday, indicating a possible breakthrough in a seven-month dispute that halted exports.
EU agrees rules to manage investor-state disputes
28-Aug-2014 European Commission
The European Union today took an important step towards creating a comprehensive EU investment policy, with the publication of a Regulation setting out a new set of rules to manage disputes under the EU’s investment agreements with its trading partners.
The “anti-ISDS bill” before the Australian Senate
28-Aug-2014 Kluwer Arbitration Blog
Indonesia is not the only Asia-Pacific nation that is reassessing investment treaties containing provisions on Investor-State Dispute Settlement (ISDS, especially arbitration).
Indonesia 1, Newmont 0
28-Aug-2014 Jakarta Globe
US firm Newmont Mining has withdrawn its arbitration claim against Indonesia
S&D Group president Gianni Pittella: "We oppose ISDS mechanism in EU-Canada trade deal"
27-Aug-2014 S&D Group in the EP
The Socialist & Democrat Group in the European Parliament has always opposed the inclusion of the investor-state dispute settlement mechanism in CETA, says their president G. Pitella, and it will be up to the Parliament to decide whether or not to ratify the agreement.
CAFTA investor rights undermining democracy and the environment: Pacific Rim mining case
23-Aug-2014 Public Citizen
Pacific Rim Mining Corp., a Canadian-based multinational firm, sought to establish a massive gold mine using water-intensive cyanide ore processing in the basin of El Salvador’s largest river, Rio Lempa.
Indonesia’s termination of the Netherlands–Indonesia BIT: Broader implications in the Asia-Pacific?
23-Aug-2014 Kluwer
While Indonesia intends to renegotiate its BITs to provide greater capacity to regulate in the public interest, the current Australian government has indicated it will consider the inclusion of ISDS on a case-by-case basis.
CETA: What the leaked version reveals
17-Aug-2014 Le Monde
The most controversial provisions include the investor state dispute resolution mechanism (ISDS), an arbitral tribunal meant to settle disputes between governments and corporations.