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)

Wind Power | 26-Feb-2018
In a second international ruling against retroactive cuts in renewables support introduced by the Spanish government in 2013, a Swedish arbitration panel has awarded a Luxembourg-based investment firm €53 million compensation.
Oil and Gas Online | 22-Feb-2018
Ongoing negotiations to modernize NAFTA must advance our role as a global energy leader by retaining US access to Mexico’s newly-opened oil and natural gas market and providing strong protections, including Investor-State Dispute Settlement.
CincoDías | 21-Feb-2018
– Inversores de Novenergia logran un laudo condenatorio en Estocolmo. El demandadente reclamaba 60 millones y otros 1.900 millones en otro arbitraje.
Reuters | 21-Feb-2018
The case is one of several brought to courts in Europe by Moldovan businessman Anatolie Stati who is attempting to force the Kazakh government to pay up in a dispute about his energy investments in the oil-rich country.
Reuters | 21-Feb-2018
International mining companies are lobbying Kabila not to sign the new code, saying the proposed changes would discourage investment and violate existing agreements. Randgold has threatened to challenge the law through international arbitration.
Le Média | 21-Feb-2018
Le fonctionnement des tribunaux d’arbitrage, à travers l’exemple de Dubrovnik, ville croate sur laquelle une entreprise néerlandaise souhaitait construire un Golf.
Bloomberg | 19-Feb-2018
Randgold is considering launching international arbitration if Congolese President gives his assent to the legislation.
London South East | 19-Feb-2018
Churchill Mining updated the market on the progress made in its attempts to annul an international tribunal’s award against it.
Freedom Newspaper | 19-Feb-2018
How can the Goverment risk billions of dalasis in arbitration costs, once more, with Africa Petroleum? What money will pay for this trial?
Haaretz | 19-Feb-2018
Decision comes six years after supplies were halted, forcing EMG shareholder Ampal into bankruptcy.