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)

The Star | 13-Mar-2015
ExxonMobil and Murphy Oil awarded $17.3 million in damages from Canada in investor-rights dispute over research and training funding in Newfoundland and Labrador.
Express Tribune | 13-Mar-2015
Pakistan has rejected the United States’ proposed draft of a Bilateral Investment Treaty (BIT) between the two countries, saying the acceptance of the US template would carry ‘dangerous obligations’ for the country.
Reuters | 12-Mar-2015
Law professors from across the United States urged lawmakers to keep rules to protect foreign investors out of trade pacts on Wednesday, warning they would give big companies too much power.
EurActiv | 6-Mar-2015
Studies that promote investor-state dispute settlement (ISDS) have generated misleading numbers and dubious recommendations. Legislators should approach all studies with caution, warns Gus Van Harten.
S&DGroup | 4-Mar-2015
Today the Socialist and Democrats Group in the European Parliament adopted a very strong position paper on Investor-State Dispute Settlements, opposing the inclusion of the controversial mechanism in trade deals with both the US and Canada.
Australia Broadcasting Corporation | 4-Mar-2015
Discussion with Susan Sell, Matthew Rimmer and Jane Kelsey
La Croix | 27-Feb-2015
Alors que l’Organisation mondiale de la santé célèbre vendredi 27 février les dix ans de la Convention-cadre pour la lutte antitabac, l’Uruguay, pionnier dans ce combat, fait l’objet d’une plainte déposée il y a cinq ans par le cigarettier Philip Morris.
Washington Post | 26-Feb-2015
"Agreeing to ISDS in this enormous new treaty would tilt the playing field in the United States further in favor of big multinational corporations. Worse, it would undermine U.S. sovereignty," writes Elizabeth Warren.
Le Monde | 25-Feb-2015
A défaut de l’écarter complètement des négociations du Tafta/TTIP (et de son petit cousin, l’accord CETA entre l’Europe et le Canada), comme le réclame une bonne partie de la société civile, la gauche européenne souhaite réformer en profondeur ce mécanisme d’arbitrage pour limiter ses dérives.
Le Monde | 24-Feb-2015
Rather than abandoning completely the TTIP/TAFTA negotiations (and their little cousin CETA, an agreement between Canada and the EU) which is what a good part of civil society are calling for, the European Left wants to thoroughly reform this arbitral mechanism to limits its abuses.