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.
Joining the Energy Charter Treaty could cost developing countries money that is urgently needed to fight the COVID-19 pandemic and economic crisis.
Governments’ emergency actions in the wake of COVID-19 could prompt a wave of arbitration lawsuits for billions of dollars by multinational corporations and investment lawyers.
The tribunal granted Turkmenistan’s application for security for costs, ordering the claimant to post US$3 million in security as a condition to the continuation of the arbitration.
The tribunal dismissed all claims against Turkmenistan brought by a Turkish investor, Lotus Holding Anonim Sirketi, under the Energy Charter Treaty and the Turkey-Turkmenistan bilateral investment treaty.
In 2019, arbitration finance has figured in at least 20 ICSID arbitrations. The ability to finance the pursuit of unpaid arbitration awards is perceived as the most significant benefit of arbitration finance to companies.
Peruvian officials have warned that a proposed emergency measure suspending the collection of toll fees on the country’s road network in response to the outbreak of covid-19 could result in multiple ICSID claims.
Governments are facing an imminent threat of investor–state arbitration as they take difficult decisions to support public health systems in a time of severe economic stress.
Many countries, particularly in the global south, are in the process of joining the Energy Charter Treaty despite the sweeping powers it grants to foreign investors.
Axiata said the payment was made under protest and will seek remedies including restitution of sums already paid in the international arbitration proceedings.
Ascent Resources Plc, the onshore European and Caribbean / Hispanic American oil and gas company, has received a Letter of Intent for up to €3 million of potential litigation funding in Slovenia.
This is Brazil’s 10th and India’s 4th bilateral investment agreement since both nations had adopted their Model Bilateral Investment Treaty.
States around the world have taken a variety of measures seeking to stem the spread of COVID-19. It is likely that some foreign investors may seek relief and/or compensation for any losses resulting from State measures.
Investors are receiving monetary damages that they would not be entitled to outside of ISDS, on the basis of an unjustified and highly reductive understanding of value.
Allegedly arbitrary or disproportionate measures, albeit in the public interest, provide regular grist for the mill of investment treaty arbitration.
In order to halt the spread of the coronavirus pandemic (Covid-19) and to boost the public health care system and preparedness, India has taken several regulatory steps.
The group, representing nearly 4,500 dispossessed commercial farmers, said the new regulations only affect ‘’indigenous’’ farmers and foreigners protected by Bilateral Investment Treaties (BITs).
Mining company South32 has filed a request for arbitration at the World Bank over a dispute with Colombia concerning royalty payments from its majority-owned Cerro Matoso ferronickel mine:
Emergency measures to prevent the spread of the coronavirus and protect the economy could lead to claims under bilateral investment treaties.
The claimants initiated ICSID arbitration against Spain, claiming breaches of the Energy Charter Treaty, including the fair and equitable treatment, umbrella and non-impairment clauses.
The hard work of protecting water and land from the long-term harms associated with gold and silver mining takes place daily on the frontlines of tenacious struggles throughout Latin America and around the world.