Energy & environment

Most investor-state disputes (ISDS) have concerned environmental matters. Corporations are using the ISDS system found in trade and investment agreements to challenge environmental policies. As of end of 2019, 41% of all ICSID cases were energy and natural resources-related.

Most well-known cases include:

• Lone Pine Resources (US) vs. Canada: the investor challenged Quebec’s moratorium on the controversial practice of hydraulic fracturing, or fracking, for natural gas. The provincial government declared the moratorium in 2011 so as to conduct an environmental impact assessment of the extraction method widely accused of leaching chemicals and gases into groundwater and the air. Case pending (NAFTA invoked).

• Bilcon (US) vs. Canada: the US industry challenged Canadian environmental requirements affecting their plans to open a basalt quarry and a marine terminal in Nova Scotia. In 2015 the ISDS tribunal decided that the government’s decision hindered the investors’ expectations. Bilcon won and received US$7 million in damages, plus interest (NAFTA invoked).

• Vattenfall (Sweden) vs. Germany: in 2007 the Swedish energy corporation was granted a provisional permit to build a coal-fired power plant near the city of Hamburg. In an effort to protect the Elbe river from the waste waters dumped from the plant, environmental restrictions were added before the final approval of its construction. The investor initiated a dispute, arguing it would make the project unviable. The case was ultimately settled in 2011, with the city of Hamburg agreeing to the lowering of environmental standards (ECT invoked).

Photo: Kris Krug / CC BY-NC-ND 2.0

(March 2020)

Financial Post | 30-Jun-2017
When it comes to the North American Free Trade Agreement, Canada can safely claim the title of biggest loser in terms of lawsuits.
Reuters | 30-Jun-2017
Gabriel Resources Ltd will seek $4.4 billion in damages from Romania for losses related to its long-stalled Rosia Montana gold mine project in a claim that the Canadian miner plans to file with a World Bank Tribunal.
Stock Market Wire | 29-Jun-2017
Churchill Mining has confirmed that the stay on enforcement of the East Kutai Coal Project Award will continue pending a decision on the Annulment Application.
Radio Mundo Real | 28-Jun-2017
Criminal charges pending against 18 community leaders and a billion-dollar court case at ICSID.
Les Echos | 28-Jun-2017
Paris lève une saisie opérée par les anciens actionnaires du groupe pétrolier. Et s’en remet à la Cour de justice européenne sur le fond du dossier.
IISD | 28-Jun-2017
Le Secrétariat de la Charte de l’Énergie est en « mode expansion », et souhaite obtenir l’accès aux ressources énergétiques d’Afrique et d’Asie pour ces membres actuels – principalement des pays développés.
TASS | 28-Jun-2017
Yukos, once Russia’s largest oil major, was accused of tax crimes and declared a bankrupt by a Russian court ruling in 2006 while its assets were sold at auctions during the liquidation procedure.
Manila Standard | 27-Jun-2017
The ICSID designated the team that will hear Shell Philippines Exploration B.V.’s arbitration case against the Philippine government on Malampaya gas project’s corporate income tax issue.
Greenpeace | 26-Jun-2017
A leak of documents related to a looming trade deal with Japan (known as JEFTA) has revealed the EU’s failure to live up to improve transparency and uphold environmental standards in trade policy promises.
IISD | 23-Jun-2017
The Energy Charter Secretariat is in expansion mode, wanting to gain access to energy resources in Africa and Asia for its current—mostly developed country—members, and extending a far-reaching (and outdated) investment protection system to investments in resource-rich countries.