Financial stability

Investor-state dispute settlement (ISDS) is one of the greatest threats to the re-regulation of finance. ISDS empowers the very firms that financial regulation seeks to govern. These firms can bypass host country domestic courts and directly challenge domestic policies in a parallel system of justice.

Financial and non-financial firms have increasingly used ISDS provisions in trade agreements to challenge financial regulations and emergency financial stability measures.

Most well-known cases include:

• Investors vs. Argentina: When the country froze its utility rates and devaluated its currency in response to its 2001-2002 financial crisis, it was hit by over 40 lawsuits from investors, including Suez, Vivendi (France) and Anglian Water (UK). By January 2014, Argentina had been ordered to pay a total of US$980 million (various BITs invoked).

• Poštová Banka (Slovakia) & Istrokapital (Cyprus) vs. Greece: the Slovak bank and its Cypriot investor sued Greece on account of the restructuring of the country’s sovereign debt, after having bought Greek government bonds at a knockdown value. The investors lost the case. (Greece-Slovakia & Cyprus-Greece BITs invoked).

• Saluka (Netherlands) vs. Czech Republic: the Dutch investment corporation filed an ISDS dispute against the Czech government for not bailing out a private bank, in which the company had a stake, in the same way that the government bailed out banks in which the government had a major stake. The bailouts came in response to a widespread bank debt crisis. The investor was awarded US$236 million (Czech Republic-Netherlands BIT invoked).

Photo: Maalokki / CC BY 2.0

(March 2020)

Total Croatia News | 6-Jul-2021
Four arbitration cases brought by banks against Croatia before the ICSID connected with the conversion of CHF-denominated loans were suspended on 30 June.
NDTV | 31-May-2021
The arbitral award has condoned the tax avoidance scheme adopted by Cairn Energy.
The Leaflet | 28-May-2021
The perverse interplay of BITs with double taxation avoidance agreements has been bleeding India from the much-needed tax revenues.
Lexology | 28-May-2021
The Paris Court of Appeal has set aside a $1.1 billion award against Russia for the expropriation of the Crimean branch of Ukrainian state-owned bank Oschadbank.
The Leaflet | 27-Apr-2021
The international economic law regime has stripped India of over $3.8 billion in taxes due by Vodafone and Cairn Energy, as the country is battling the Covid19 crisis.
Business Standard | 12-Apr-2021
Cairn Energy has offered to invest the entire award money in India, which includes the principal amount of $1.2 billion and interest of $500 million if the government agrees to enforce the award.
IISD | 9-Apr-2021
Un tribunal de la CPA desestimó las objeciones jurisdiccionales presentadas por India y concluyó que dicho país incumplió con el estándar de TJE bajo el TBI entre India y el Reino Unido. El caso fue iniciado por Cairn Energy.
IISD | 9-Apr-2021
Un tribunal arbitral a rejeté les objections à la compétence de l’Inde et conclu que le pays avait violé la norme TJE du TBI Inde-Royaume-Uni, dans un arbitrage lancé par Cairn Energy.
IISD | 9-Apr-2021
A PCA tribunal dismissed India’s jurisdictional objections and found it in breach of the FET standard in the India–UK BIT in an arbitration under UNCITRAL rules initiated by Cairn Energy.
Global Legal Chronicle | 9-Apr-2021
The Paris Court of appeal set aside the arbitral award issued in the dispute Oschadbank v. the Russian Federation, finding that the tribunal lacked temporal jurisdiction.

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