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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.

Netherlands – Indonesia BIT rolls back implementation of new Indonesian mining law: The case of Newmont Mining vs Indonesia
13-Nov-2014 TNI
The case of Newmont Mining vs Indonesia is a powerful example of how investment agreements, particularly Bilateral Investment Treaties (BITs), are used by companies to get exemptions from government regulations and legislation, undermining democracy and development.
Malmström: Only minor adjustments to ISDS in trade deal with Canada
12-Nov-2014 EurActiv
Only small changes can be made to an investment protection clause in a trade pact between Canada and the European Union, European Trade Commissioner Cecilia Malmström said on Monday (10 November).
Never mind ISIS, it’s ISDS that’s the real threat
12-Nov-2014 The Nation
If a “high-standard” ISDS is included in the Trans-Pacific Partnership, the results could be catastrophic, especially for the environment and people fighting to protect the environment.
EU-Japan FTA - open Letter to Commissioner Karel de Gucht
7-Nov-2014 TNI
In an open letter Japanese & European groups call for transparency in the EU-Japan trade talks and removing the Investor-State Dispute Settlement mechanism (ISDS) from the Free Trade Agreement (FTA)
TTIP: new Commission divided over the future of ISDS in EU trade policy
6-Nov-2014 ViEUws
Jennifer Baker is joined by Richard More O’Ferrall, spokesperson for the Greens Group, to discuss the future of trade negotiations between the European Union and United States under the new Juncker Commission.
TDM Call for Papers: CETA special
6-Nov-2014 TDM
The editors of Transnational Dispute Management journal invite contributions to a special edition on CETA
Argentina strikes out in bid to undo $185M BG Group award
4-Nov-2014 Litigation Daily
The Supreme Court on Monday shunned the republic’s latest appeal in a decade-long battle with BG Group plc, a British energy company that won a $185 million arbitration ruling against Argentina under a bilateral investment treaty.
Protecting Thailand from the hazards of international arbitration
4-Nov-2014 The Nation
The International Chamber of Commerce (ICC) has said Thailand is in urgent need of an arbitration law to facilitate settlements between Thai and foreign companies, so as to increase foreign investor confidence and prepare upcoming Asean Economic Community (AEC) next year.
Australian company sues El Salvador for its right to pillage
3-Nov-2014 Green Left Weekly
Australian-based company OceanaGold is suing El Salvador for US$301 million for its “right” to continue operating a gold mine that is destroying the Central American nation’s water supply.
Legacy: De Gucht negotiated two rigged ISDS chapters
3-Nov-2014 Vrijschrift
On 15 September Vrijschrift informed the European Parliament international trade committee that investor-to-state arbitration (ISDS) in the draft trade agreement with Canada is rigged to the advantage of the US. Today Vrijschrift informed the committee the same is true for the draft trade agreement with Singapore.
Iran wins its first investor-state case
29-Oct-2014 Lexology
The Islamic Republic of Iran has won its first ever investor-state arbitration in a decision against Turkish mobile phone company, Turkcell.
The Micula case: When ISDS messes with EU law
28-Oct-2014 BEUC
This case illustrates the risk that a Member State can be successfully sued by a company within ISDS for merely bringing its legislation or policies in line with EU legislation.
Singapore concerned by ISDS debate, asks investment be “decoupled” from EU deal
28-Oct-2014 EU Trade Insights
As the debate in Europe over investors’ rights to sue States is growing, Singapore has been asking the European Commission to agree to a decoupling of the bilateral trade agreement as the country is concerned the investment protection part of the deal could hold up the entire pact.
Member states warn Juncker against ISDS concessions
23-Oct-2014 European Voice
As Juncker gives reassurances to the European Parliament over free trade with the US, 14 member states are urging him to stick to the script.
US floats cutting tobacco from part of Pacific trade pact -sources
22-Oct-2014 Reuters
The United States has floated excluding tobacco products from a key section of a 12-nation Pacific trade deal and signaled it may present a formal proposal to trading partners at talks in Australia.
Big Tobacco puts Uruguay on trial
22-Oct-2014 Central Telegraph
Uruguay files its defence against Philip Morris, a test case for big business lawsuits that could hit the EU through the transatlantic trade and investment deal with the US.
Trans-Pacific Partnership piles up challenges for democracy
21-Oct-2014 The Conversation
The US is again driving the TPP agenda on behalf of its major export industries, but the TPP proposals are more extreme than the Australia-US FTA, writes Pat Ranald.
EU Trade Commissioner Karel De Gucht warns ’no TTIP without ISDS’
17-Oct-2014 IBT
The European Trade Commissioner Karel De Gucht has warned that there will be no free trade agreement between the EU and US without the controversial investor-state dispute settlement (ISDS) clause.
Indonesia challenges Australian cigarette packaging laws
16-Oct-2014 Wall Street Journal
Tobacco producers Indonesia, Cuba, Dominican Republic, Honduras and Ukraine are challenging Australia’s plain-packaging laws at the World Trade Organization, bolstering support for Philip Morris’ private dispute against Canberra.
EU-Singapore investment talks concluded, says EU Trade Chief
16-Oct-2014 EU Trade Insights
The European Union and Singapore have finally concluded negotiations over a bilateral investment agreement, EU Trade Commissioner Karel De Gucht has told EU Trade Insights in an exclusive interview.