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.
Interview with Yamina Saheb, former head of unit in the Energy Charter Treaty Secretariat .
The claims had arisen out of certain measures taken by Poland, allegedly in breach of the Energy Charter Treaty and the Australia-Poland Bilateral Investment Treaty.
In a recently published decision, the Supreme Court – for the first time – partially annulled an arbitral award issued in an investment arbitration brought by Clorox España SL against Venezuela.
Of the 65 states that have received investment law advice from World Bank’s FIAS, 30 subsequently included arbitration in their law.
In the face of the increasing number of claims brought by investors against host states on the basis of BITs and the exorbitant amounts awarded to investors, Morocco has undertaken a review of its model BIT using a flexible and rational approach.
On June 11, 2020, an ICSID ad hoc committee issued a unanimous decision to annul a €128 million award against Spain in its entirety.
The Transpacific Partnership Agreement involves investor - state dispute settlement clauses, which large companies may use ISDS to sue governments for actions they took to stop the spread of the virus.
A golf course, free-trade agreements, and the fight for the soul of a city
We urge you to take immediate action to ensure that the duty of governments to regulate in the public interest is safeguarded and put beyond the scope of ISDS claims.
The government is apparently baffled by Lone Star Fund’s attempts to use Korean news outlets as a means of putting itself in a dominant position in its $4.68 billion legal battle against Seoul.
The Supreme Court of the Netherlands has agreed to consider Russia’s appeal against a lower court ruling, which awarded multi-billion-dollar compensation to former shareholders of the defunct Russian oil giant, Yukos.
International investment law and investor dispute arbitration too often fail to notice the concerns of local actors. Governance of these international mechanisms needs to take a more holistic, development-based view of the issues.
The ICSID has lifted the suspension on the execution of the €290 million award NextEra obtained a year ago.
Pakistan’s chances of having its $6 billion penalty in the Reko Diq case annulled have received a boost with a committee of the International Centre for Settlement of Investment Disputes (ICSID).
Arbitration cases due to COVID emergency measures would exacerbate the challenges that public budgets are already facing due to the need for stimulus measures and the difficulty in collecting government revenue.
Joining the Energy Charter Treaty could cost developing countries money that is urgently needed to fight Covid-19 and a loaming economic crisis. The Energy Charter Treaty has become increasingly controversial.
On 5 February 2020, Australia and Indonesia signed an exchange of letters agreeing to the termination of the Aus-Indo BIT and its sunset clause.
We call for a moratorium on investor-state arbitration cases and clarity of legal principles to ensure that governments have the policy space to protect their citizenry and combat the epidemic.
The EU Commission has launched a public consultation calling for comments on its initiative to improve the protection of intra-EU investment. This initiative could lead to the adoption of new rules enhancing investors’ rights vis-à-vis EU Member States and to the creation of new enforcement mechanisms for investors within the EU.
Ecuagoldmining’s estimated $20 million investment so far could turn into a $469 million award, should it emerge victorious in an arbitration proceeding.