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)

Arbitration Blog | 26-Jan-2018
The EC claimed intra-EU investment treaty arbitration is in breach of EU law. If the CJEU were to confirm the decision of the EC, the application of the ICSID Convention within the EU would be seriously endangered.
Cision | 25-Jan-2018
Stockholm District Court issued a judgment clearing the way for the Stati parties to collect the US$520 million arbitration award against the Republic of Kazakhstan.
Money Control | 24-Jan-2018
Cairn commenced international arbitration proceedings against India under the UK—India Bilateral Investment Treaty in 2015.
Reuters | 24-Jan-2018
The assets held by the fund’s custodian were frozen last October after a lawsuit by Moldovan businessman Anatolie Stati who seeks to enforce a $500 million arbitration ruling against the Astana government.
Express Tribune | 22-Jan-2018
The TCC tribunal failure did not reflect an internal failure on the part of Pakistan’s state apparatus as much as it did the hegemonic nature of the global BIT regime that developing countries have been subjected to by the West.
CEE Legal Matters | 19-Jan-2018
Latvia must compensate E-energija EUR 3.7 million for investment abuse in the district heating business.
Milieu Defensie | 12-Jan-2018
The French oil company Total evicts people from their land in Uganda to make room for an oil processing facility.
RQIC | 11-Jan-2018
Deux vidéos pour mieux démontrer et expliquer que l’ALÉNA constitue un obstacle a la poursuite des objectifs de protection de l’environnement et de lutte aux changements climatiques.
Reuters | 9-Jan-2018
Moldovan businessman Anatolie Stati will ask bailiffs to sell a $5.2 billion stake in the Kashagan oil field owned by a Kazakh sovereign wealth fund if Astana refuses to pay a $500 million arbitration award.