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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.

Slovenian NGOs threaten to challenge CETA in court
7-Mar-2023 Euractiv
Environmental organisations are threatening to bring about a court challenge to the Comprehensive Economic and Trade Agreement between the EU and Canada, just as the ratification of the agreement is set to be on the agenda.
The EU-Chile advanced framework agreement: a brief analysis of the investment protection provisions
3-Mar-2023 Lexology
The advanced framework agreement’s investment protection provisions include many of the substantive obligations that are common in international investment agreement.
Ecuador-Canada Free Trade Agreement: a new attack on communities, Indigenous peoples, and the environment
2-Mar-2023 Mining Watch
A Free Trade Agreement between Ecuador and Canada is not in the interests of Indigenous peoples, territories or the environment. The FTA will only be another instrument of corporate power, wielded by the national elites to deepen the rationale for devastation.
UK must quit climate-harming energy charter treaty, experts say
13-Feb-2023 The Guardian
Secret international court system enables fossil fuel firms to sue governments for lost future profits.
Switzerland says won’t follow EU out of beleaguered Energy Charter Treaty
13-Feb-2023 Euractiv
Bern said it will not join the European Union’s proposed mass exit from a controversial energy investment protection treaty, sparking fears that fossil fuel companies will use Switzerland as a rear base to keep suing governments over climate action.
Brussels says EU exit from Energy Charter Treaty ’unavoidable’
8-Feb-2023 Reuters
The European Commission has told member countries that a joint EU exit from a controversial international energy treaty appears inevitable.
Spain sticks with decision to block Berkeley’s uranium mine
8-Feb-2023 Mining.com
Berkeley said it also believes the rejection is not legal as it infringed on its rights under an international agreement known as the Energy Charter Treaty.
NAFTA’s shadow of obstruction
8-Feb-2023 Rosa Luxemburg Stiftung
Investor rights in the expired North American Free Trade Agreement continue to undermine democratic decision-making and climate policy in Mexico, Canada, and the United States.
AFTINET submission to the review of ISDS in the Australia-NZ-ASEAN free trade agreement
6-Feb-2023 AFTINET
The AFTINET submission provides evidence of the harmful use of ISDS over the last decade against public regulation on health, indigenous rights, the environment and most recently against policies to reduce carbon emissions.
How Biden can end secretive corporate tribunals
3-Feb-2023 The American Prospect
The president has promised not to put anti-democratic investor-state dispute settlement mechanisms in future trade deals. But they are still in many existing ones.
Croatia to pay $256 million arbitration award to MOL - minister
3-Feb-2023 Reuters
Croatia will pay $255.7 million to Hungarian oil and gas company MOL under a ruling in an arbitration case at the International Centre for Settlement of Investment Disputes.
Potential Canada-Ecuador trade pact to navigate tricky investment protections field
25-Jan-2023 The Hill Times
Controversial ISDS provisions are trumpeted for protecting Canadian foreign investments, but are panned for allowing companies to sue countries.
Report: Evaluating the Proposed Joint Interpretation of the Comprehensive Economic and Trade Agreement (CETA)
25-Jan-2023 Saskia Bricmont
This report analyzes the proposed interpretive guidance on the Investment Chapter of the Comprehensive Economic and Trade agreement (CETA) between Canada and the European Union.
Why a coordinated withdrawal from the Energy Charter Treaty is inevitable
25-Jan-2023 Euractiv
Since October 2022, seven EU member states have announced plans to withdraw from the European Charter Treaty. Across the board, the message is clear: the insufficient and potentially climate-damaging treaty reform effort is no longer a politically viable option.
Bite Latvia shareholder appeals to govt over 5G action by regulator SPRK
24-Jan-2023 Telecompaper
The US-based company Providence Equity Partners claims that certain actions by national public service regulator SPRK indicate a possible violation of the bilateral investment agreement between the US and Latvian governments.
Polluter doesn’t pay: The Rockhopper v Italy award
23-Jan-2023 EJIL: Talk!
The way in which the reasoning of the Rockhopper award expels any environmental considerations has the effect of making climate change interventions considerably more costly
Greta Thunberg’s arrest shows why we must abolish the Energy Charter Treaty
23-Jan-2023 Open Democracy
The treaty allows fossil fuel companies to sue governments for taking climate change action. It must go.
How Chinese companies are challenging national security decisions that could delay 5G network rollout
23-Jan-2023 The Conversation
A relatively new strategy for China is to challenge national security decisions before international tribunals using a method called investor-state dispute settlement.
CAB urges energy ministry for not signing Energy Charter Treaty
20-Jan-2023 The Daily Star
The Consumers Association of Bangladesh (CAB) submitted a petition, signed by 25,720 persons, urging the energy ministry for not signing the Energy Charter Treaty as the signing of the treaty will affect the public interest and the nation’s energy sector.
AfCFTA protocol on investment draft (Feb 2022)
18-Jan-2023