North America

Canada and the United States have signed about 180 investment agreements.

They are both party to the North American Free Trade Agreement (NAFTA) with Mexico. Sixty-seven disputes were launched under NAFTA.

NAFTA was recently renegotiated and replaced by the US-Mexico-Canada Agreement (USMCA) that was signed in November 2018 and is yet to enter in force. The investor-state dispute settlement (ISDS) mechanism between the US and Canada, and between Mexico and Canada has been removed – even though it is included in the Trans-Pacific Partnership, to which both Mexico and Canada belong. Only limited claims are allowed between the US and Mexico, after exhaustion of local remedies. But the ISDS mechanism has been maintained between the two countries for claims pertaining to Mexico’s oil and gas sector.

The US is also party to the Dominican Republic–Central America Free Trade Agreement (CAFTA), with six Central American states. US investors have initiated all 11 known CAFTA disputes.

Canada has an investment treaty with China and is party to the Comprehensive Economic and Trade Agreement (CETA) with the European Union. CETA includes a revised ISDS mechanism, the investment court system, which has been critiqued for not addressing the core of the problem behind the mechanism.

US investors have extensively used the ISDS mechanism. They have initiated around 180 disputes, over 17% of all known cases, making the US the most frequent home state of investors. The US has never lost an ISDS case.

Canadian investors have initiated about 50 disputes and Canada has been the fourth most frequent target among ‘developed’ states (9th globally), with 29 cases.

Photo: Public Citizen

(April 2020)

Washington Post | 28-Apr-2015
Obama leans hard into the idea that TPP’s ISDS will be drawn explicitly to prevent corporate gaming of the litigation process
EurActiv | 24-Apr-2015
Shrouded with secrecy and posing a threat to public services, Owen Tudor tells EurActiv why the UK Trade Union Congress doesn’t believe the hype over TTIP, and why exploitation, rather than immigration, should be the cause of people’s concerns.
ITUC | 15-Apr-2015
The International Trade Union Confederation calls on the government of El Salvador to denounce all treaties establishing ISDS proceedings.
Equal Times | 15-Apr-2015
The Central American state of El Salvador could be forced to pay US$301 million in damages to an Australian-Canadian mining company, OceanaGold, after the company’s application for a mining license was rejected on the basis of the projected environmental damage it would cause.
AFL-CIO | 10-Apr-2015
The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and the Canadian Labour Congress (CLC) call for an end to ISDS in all pending trade and investment agreements.
Amazon Watch | 9-Apr-2015
An apparent Chevron whistleblower has sent Amazon Watch dozens of internal company videos showing Chevron employees and consultants manipulating evidence linked to the oil giant’s extensive contamination - and legal dispute - in Ecuador.
Huffington Post | 28-Mar-2015
In Chevron’s massive international arbitration directly against the government of Ecuador, it has gotten everything it has asked for from the panel of arbitrators — until last week.
Reuters | 27-Mar-2015
Australia’s medicine subsidies, Canadian films and culture, and capital controls in Chile would be carved out from investment protection rules being negotiated in a Pacific trade pact, according to a draft text released by Wikileaks on Wednesday.
Globe & Mail | 25-Mar-2015
A NAFTA arbitration panel has ruled against Canada in a claim by a US company that wanted to develop a quarry in Nova Scotia, although a dissenting member of the panel warned that the decision will be seen as a “remarkable step backwards” in environmental protection.
Public Citizen | 23-Mar-2015
Questions and answers on investor-state dispute settlement (ISDS) that pertain to incorrect claims being made by the Office of the US Trade Representative.