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)

Client Earth | 6-Mar-2018
ISDS is not only an unwelcome tool that allows multinational corporations to put pressure on public interest decision-making, it is also incompatible with EU law.
Latin America Herald Tribune | 5-Mar-2018
US Federal District Court Judge Richard J. Leon has ordered Rusoro’s $1.2 billion ICSID Expropriation award against Venezuela registered in the US.
No al TTIP | 2-Mar-2018
Inversores de Novenergia logran un laudo condenatorio en Estocolmo. El demandadente reclamaba 60 millones y otros 1.900 millones en otro arbitraje.
Energy Voice | 1-Mar-2018
The tribunal found that Novenergia’s investments were achieving a reasonable rate of return. However, the tribunal held that it was sufficient for the claim to succeed that Novenergia could show “quantifiable prejudice” compared with its position when it initially made its investment.
Lexology | 1-Mar-2018
On 26 December 2017, the Commission published its decision that attacked the ECT claims brought by investors against Spain (and other EU states).
Mondaq | 1-Mar-2018
One tribunal could interpret the effect of legislative provisions differently to another. So while Eiser opens up the prospect of more claims, Blusun may narrow the basis for claims.
Clyde & Co | 1-Mar-2018
With the global financial crisis, solar power incentives schemes became unbearably costly and Spain repealed those incentives. Consequently, many investors brought arbitration claims under the Energy Charter Treaty.
112 | 28-Feb-2018
The lawsuit requirements come down to the amount of compensation, which has been evaluated by independent experts at over $5 billion.
No al TTIP | 26-Feb-2018
La nueva oleada de tratados y acuerdos de comercio e inversión es uno de los principales hitos de la agenda de reconfiguración del capitalismo en el siglo XXI.
Umweltinstitut München | 26-Feb-2018
Despite the fact that the ECT was initiated and designed by the EU, there are compelling grounds to doubt the compatibility of the ECT’s arbitration clause with the principles underpinning the EU’s judicial system.