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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.

Canada’s Gabriel Resources files international arbitration suit against Romania
22-Jul-2015 Mining Weekly
Gabriel Resources has filed a request for arbitration before the World Bank’s International Centre for Settlement of Investment Disputes against Romania over the Roşia Montană gold/silver project,
ACFI Brasil-Angola (2015)
20-Jul-2015 Ministério das Relações Exteriores do Brasil
Statement by Bechtel on Dabhol settlement
19-Jul-2015 Bechtel
In exchange for $160 million in compensation for its equity and contractor claims, Bechtel agreed to forgo international arbitration over the expropriation of its investment.
Gold mining company that sued Costa Rica files for bankruptcy
16-Jul-2015 Tico Times
Zombie mining company that tried to sue Costa Rica for US$1 billion in lost profits folds.
How global trade agreements undermine sustainable business: The American Sustainable Business Council perspective
15-Jul-2015 Just Means
The American Sustainable Business Council explains that the point of greatest concern in TPP, TTIP and especially the TiSA agreement is the proposal to allow corporations to sue governments in an international tribunal.
The position of REDES – AT Uruguay on the recent ICSID decision
13-Jul-2015 REDES - AT
Devastating news for Uruguay and the WHO Framework Convention on Tobacco Control
Alba establishes mechanisms for legal defense against arbitral claims filed by transnationals
9-Jul-2015 ADITAL
The Bolivarian Alliance for the People of Our America (ALBA ) has agreed to create a new regional mechanism to provide a collaborative defence in international arbitration proceedings, notably in respect of claims filed by transnational corporations against Latin American countries.
9 ways the TPP is bad for developing countries
8-Jul-2015 Foreign Policy
Oone issue that has received comparatively little attention is how the Trans-Pacific Partnership is likely to impact the developing countries slated to join.
MEPs urged to vote against TTIP deal
8-Jul-2015 The National
MEPS are being urged to reject a controversial trade agreement between the US and the EU when a report on the deal is voted on today in the European Parliament.
EP chief brokers internal deal on US trade court
8-Jul-2015 EU Observer
The European Parliament’s proposed ISDS-lite, which some say was concocted by Merkel’s office, goes to non-binding vote today
Editorial: New Zealand must tread carefully on Trans Pacific Partnership
6-Jul-2015 The Dominion Post
New Zealand needs to be ready to walk away from the Trans Pacific Partnership, says The Domion Post, worried about the impact of its drug patenting rules and investor-state dispute settlement mechanism.
Investor vs. State
3-Jul-2015 Policy Alternatives
Canada is being pummeled by NAFTA corporate lawsuits. Why do we put up with it?
Maximising investment protection in Africa: the role of investment treaties and investment arbitration
3-Jul-2015 Lexology
In recent years, many African governments have made an effort to improve foreign investors’ protections by entering into many BITs and related agreements with non-African countries
What’s at stake: South Korea vs Lone Star Funds
30-Jun-2015 Wall Street Journal
For those uninitiated in the world of international arbitration, below is the primer of the issues at play in the South Korea-Lone Star Funds arbitration.
AFTINET: Reply to the Department of Foreign Affairs and Trade Myths and Realities document, June 2015
30-Jun-2015 Scoop
The Australian government misrepresents the claims of critics and fails to address substantial criticisms of the Trans Pacific Partnership, says civil society network AFTINET.
India rejects Cairn’s arbitration on tax dispute
29-Jun-2015 PTI
The government of India has rejected Cairn Energy UK’s plea for an arbitration over Rs 10,247-crore tax dispute saying taxation is not covered under the UK-India Investment Promotion and Protection Treaty.
ISDS: Who wins more, investors or states?
29-Jun-2015 International Institute for Sustainable Development
Despite the oft-heard refrain that “states ‘win’ ISDS disputes more often than they lose,” it is the investors that have actually won most of the time: 72 per cent of the decisions on jurisdiction, and 60 per cent of cases decided on the merits.
Bringing community perspectives to investor-state arbitration: the Pac Rim case
27-Jun-2015 IIED
Civil society organisations can play an important role in carrying and strengthening community voices in arbitration processes, by making submissions to arbitral tribunals.
China-Australia FTA - the devil in the detail
26-Jun-2015 Lexology
While the legal text of the China-Australia FTA (ChAFTA) was signed last week, the investment legal framework will be reviewed within the next three years with a view to commencing negotiations for a comprehensive Investment Chapter to be included in ChAFTA.
Analysis: OceanaGold vs El Salvador: Foreshadowing ’trade’ under the TPP?
25-Jun-2015 TeleSur
The Central American country of El Salvador could be forced to pay US$301 million to Canadian-Australian mining multinational OceanaGold as the two face off in a World Bank investor-state tribunal with proven tendency to favor corporate interests over arguments for protecting national sovereignty, the environment, and human rights.