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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.

Japan backs ISDS in fierce debate at Energy Charter Treaty review
17-Sep-2020 AFTINET
A written submission from Japan published by the ECT secretariat rejected language on the “right to regulate” and changes to the investor-state dispute resolution mechanism.
Hague court rules in favor of Chevron in dispute with Republic of Ecuador
17-Sep-2020 Nasdaq
The District Court of The Hague ruled in favor of Chevron in its dispute with the Republic of Ecuador, upholding a 2018 arbitral award rendered by an international tribunal administered by the Permanent Court of Arbitration.
Shaping future UK trade policy: investment protection provisions
16-Sep-2020 Trade Justice Movement
As the UK regains full responsibility for its trade and investment policy post-Brexit, it must seriously consider its approach to international investment protection.
Energy companies keep right to sue states in private courts, as treaty reforms blocked
16-Sep-2020 Climate Home News
Negotiators have ruled out an overhaul of private courts that allow energy companies to sue national governments when climate change policies hurt their profits.
COVID-19 and the risk of foreign investor challenges
11-Sep-2020 National Magazine
Tensions are likely to surface between the public-policy directions of governments managing a challenging economic climate and foreign investors’ private interests.
Sovereign rights to natural resources as a basis for denouncing international adjudication of investment disputes: A reflection on the Tanzanian approach
11-Sep-2020 Afronomics Law
Tanzania’s reforms show that the claim that African states should regard ISDS mechanism as the preferred method for resolving investment disputes is not only very contested, but that there are legitimate grounds for those contestations.
The red carpet investments in the middle of a pandemic result in crisis of people’s sovereignty
11-Sep-2020 Indonesia for Global Justice
Indonesian CSOs assesses the national economic recovery strategy by strengthening policies economic liberalization focusing only on investment and exports will only be increasingly open space for corporate monopoly on economic resources.
Fracking company sues Slovenia over ‘unreasonable’ environmental protections
10-Sep-2020 Climate Home News
A British oil and gas company is using a controversial energy treaty to sue Slovenia, after being required to carry out an environmental impact assessment
Australian mining firm launches arbitration proceedings against Poland
10-Sep-2020 First News
Australian mining firm Prairie Mining has launched international arbitration proceedings against Poland, claiming damages for the alleged hindering of the development of its two coal mines located in the country.
Hegemony 101 in international investment law
9-Sep-2020 Afronomics Law
The hegemon aspirants in international investment law have already, and perhaps unwittingly, revealed their three step manual: Disguise, dismiss, divert.
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.