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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.

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.
TUC General Secretary calls time on ‘zombie trade deals’
23-Jun-2015 Economic Voice
TUC General Secretary, Frances O’Grady, will call time on ‘zombie trade deals’, when she addresses the European Commission Trade Policy Day in Brussels today (Tuesday).
Half-baked China-Australia Free Trade Agreement is lopsided
19-Jun-2015 Canberra Times
Remarkably, the Australian government has given Chinese companies a general right to buy resources and other assets in Australia – so-called market access – without getting the same right for Australian companies in China.
Future of ISDS in TTIP and beyond. Is now the time for reform?
19-Jun-2015 Lexology
A consensus is clearly forming around changes and adjustments needed to reform ISDS, but the main stakeholders – businesses and governments – have yet to make a clear stand, argue Adrian-Catalin Bulboaca and Marius Iliescu
SYRIZA says Europarliament must reject TTIP
17-Jun-2015 Greece Today
According to SYRIZA, ISDS undermined economic democracy by treating the rights of peoples and their elected representatives as equal to the rights of an economic oligarchy, essentially amounting to an exemption for large multinationals from democratic controls and continuing a conversion of western democracies to states where elections cannot bring about changes to economic policy.
The obscure legal system that lets corporations sue countries
10-Jun-2015 The Guardian
Fifty years ago, an international legal system was created to protect the rights of foreign investors. Today, as companies win billions in damages, insiders say it has got dangerously out of control
Canada’s new trade deals good for Canadian corporations, bad for African democracy
9-Jun-2015 rabble.ca
What do we call it when Ottawa signs a deal with an unelected regime that would prevent any future elected government in a small African nation from changing its laws regulating Canadian-owned mines for almost two decades?
How developing countries like India are petrified of being dragged into international arbitration
9-Jun-2015 Economic Times
India is caught in a pincer at this moment in time as it is faced with the twin need of FDIs to propel and sustain growth and also the need to fi rewall its sovereign rights to formulate policies without extraneous pressures from its trade partners and the corporate world.
Lying to get ISDS through the European Parliament
9-Jun-2015 EurActiv
BusinessEurope, and especially its Director General, should be factual and truthful when lobbying the European Parliament on ISDS and TTIP, argue Bart Staes and Molly Scott Cato.
American and German unions reject ISDS
5-Jun-2015 EurActiv
Union leaders on both sides of the Atlantic have called for TTIP negotiators to drop extra-legal arbitration systems from any future trade deal. They believe existing judicial systems offer adequate protection to investors. EurActiv France reports.
TPP stakes are high, so harden up
5-Jun-2015
There has never been any doubt that the United States, and especially the US Congress, wields ultimate power over the Trans-Pacific Partnership.
Latest Wikileaks dump raises concerns for regulation in Australia
4-Jun-2015
A new dump of leaked secretive trade deal documents on WikiLeaks reveals an international agreement could prevent future Australian governments from introducing regulations around licensing, qualifications and technical standards, the Sydney Morning Herald reports.
Matthias Fekl: ‘The EU should have its own arbitration court’
3-Jun-2015 EurActiv
France’s Minister of State for Foreign Trade, Matthias Fekl, delivered a proposal for TTIP arbitration reform in Brussels yesterday, in which he recommended the creation of a European court to settle trade disputes.
EU arts policies could lead to ISDS lawsuits, admits German government
3-Jun-2015 Ars Technica UK
The German federal government has admitted that an EU country’s arts policies could lead to it being sued by foreign corporations before investor tribunals under trade agreements being negotiated with Canada and the US.
UN experts voice concern over adverse impact of free trade and investment agreements on human rights
3-Jun-2015 OHCHR
A group of UN experts have issued the following statement to express concern about the secret nature of drawing up and negotiating many of these free trade and investment agreements, such as TPP and TTIP, and the potential adverse impact of these agreements on human rights.
Matiza warns Zanu PF Bippa farm invaders
2-Jun-2015 Newsday
A governernment official has warned Zanu PF supporters against invading commercial farms covered under Bilateral Investment Promotion and Protection Agreements (Bippas) with foreign governments