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)

Sydney Morning Herald | 2-May-2017
US mining company Nucoil is using a free trade agreement to put pressure on the Australian government to pay compensation over cancelled licences.
El Colombiano | 29-Apr-2017
Ante la noticia que viene circulando, y que seguramente terminará por darse a la realidad, sobre la demanda que interpondrá Gas Naturales Fenosa por valor de 3,6 billones de pesos en contra del gobierno colombiano ante el Ciadi del Banco Mundial, solo tengo una cosa por decir ¡Qué absurdo!
Live Mint | 27-Apr-2017
An international arbitration panel has rejected India’s demand for a stay on an arbitration initiated by Cairn Energy against Rs10,247 crore retrospective tax notice.
Global Justice Now | 24-Apr-2017
A new briefing has outlined the likely elements of a UK-US trade deal and argues that it would contain more extreme forms of all the controversial elements of the deal that was being negotiated between the EU and the USA.
TNS | 24-Apr-2017
The final amount of damages payable to TCC in the Reko Diq case may carry serious implications for future development projects in Balochistan.
Financial Post | 24-Apr-2017
Canadian miner Gran Colombia Gold has filed a US$700 million lawsuit against Colombia under the Colombian-Canadian free trade agreement after the government ordered the company to cease operations at the El Burro site in Marmato.
El Mundo | 21-Apr-2017
La minera tiene 120 días calendario, iniciados el 28 de marzo, para presentar recursos legales ante el CIADI.
Tech Dirt | 21-Apr-2017
ISDS is an attempt to remove the risk of investment from companies, and place it squarely on the public’s shoulders, without any quid pro quo.
Interfax | 21-Apr-2017
Ukraine will use all legal mechanisms seeking invalidation of the international arbitration court’s ruling ordering Ukraine to pay Tatneft $144 million.
Stock Market Wire | 20-Apr-2017
Churchill filed an annulment application after an ICSID Tribunal granted Indonesia’s application to dismiss the company’s claims for damages following the revocation of mining licences.