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.

| 6-Apr-2014
Japanese companies would be able to sue Australian governments under clauses expected to be included in the Australia-Japan free trade agreement.
IP Watch | 3-Apr-2014
April Fool’s? European trade commissioner Karel de Gucht says, during a 1 April hearing in Brussels of the International Trade Committee of the European Parliament, that he would agree to drop ISDS from the TTIP if the United States would agree.
Policy Mic | 25-Mar-2014
The translantic trade agreement would undermine hard-fought regulations and open up a large part of the world to greater exploitation without regulation. Fracking would go global.
Bloomberg | 20-Mar-2014
A high-profile campaign by opponents to ISDS could complicate TTIP talks long after the listening period in Europe ends.
FT via KEI | 15-Mar-2014
Germany has introduced a stumbling block to landmark EU-US trade negotiations by insisting that any pact must exclude a contentious dispute settlement provision (ISDS).
Lexology | 14-Mar-2014
This is the first instance in which the US Supreme Court has interpreted a bilateral investment treaty (BIT).
Latin American Herald Tribune | 13-Mar-2014
In a 2-1 decision, the World Bank’s arbitration panel has rejected Venezuela’s request for "reconsideration" of its September 2013 finding that it had jurisdiction and that Venezuela was liable for the expropriation of ConocoPhillips’ investments in the Latin American nation.
Yonhap | 10-Mar-2014
La Corée du Sud va négocier avec les Etats-Unis la révision de la clause sur l’arbitrage investisseur-état (ISD) de leur accord de libre-échange (ALE), a fait savoir ce dimanche une source anonyme du ministère du Commerce, de l’Industrie et de l’Energie.
TNI | 10-Mar-2014
Corporations, backed by lawyers, use international investment agreements to scavenge for profits by suing Europe’s crisis countries.
| 6-Mar-2014
For a variety of reasons, including poor management of public perceptions, the administration’s trade agenda is in trouble. Much of the public’s antipathy toward trade agreements can be boiled down to concerns about the so-called Investor-State Dispute Settlement (ISDS) provision. ISDS enables foreign investors to circumvent domestic legal processes and sue host governments in third-party arbitration tribunals for unfair or discriminatory treatment – described hyperbolically by those fanning the flames of opposition as “running roughshod over domestic laws, regulations, and sovereignty.”

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