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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)

Harper moves to give up more Canadian sovereignty
| 12-Nov-2013
Tthe Harper government recently committed Canada to ratify the ICSID Convention.
Canada , ICSID , investment | BITs , investor-state disputes | ISDS
CETA is more about corporate rights than free trade
| 9-Nov-2013
Since announcing the Comprehensive Economic and Trade Agreement (CETA) two weeks ago Harper’s Conservatives have repeatedly labelled those questioning the deal as “anti-trade”. But this Canada-European Union accord is one part trade and four parts ‘corporate bill of rights’.
Canada , corporate interests , EU , intellectual property , investment | BITs , investor-state disputes | ISDS , medicines
Argentina settles five outstanding investment treaty arbitration claims in historic break with its anti-enforcement stance
| 3-Nov-2013
Argentina has agreed to settle five separate investment treaty arbitration claims at a cost of around USD 500 million, in an historic departure from the Latin American state’s refusal to comply with awards made by international investment treaty arbitration bodies.
Argentina , corporate interests , energy , ICSID , investor-state disputes | ISDS , UNCITRAL , US , water
Canada ratifies World Bank’s ICSID Convention
| 3-Nov-2013
Canada has confirmed its ratification of the World Bank’s ICSID Convention by depositing its “Instrument of Ratification” with the International Centre for Settlement of Investment Disputes on Nov. 1, 2013.
Canada , ICSID , investment | BITs , investor-state disputes | ISDS
¿Nueva demanda contra el Perú?
La República, Perú | 3-Oct-2013
Las demandas de arbitraje contra los Estados por parte de los inversionistas son uno de los más importantes “súper derechos” que les confieren los TLC. Uno de sus usos más perversos de estos derechos es la posibilidad de ejercer presión contra los Estados, para que retrocedan en las medidas asumidas, amenazándolos con el inicio de un arbitraje.
Canada , investor-state disputes | ISDS , Peru
Arbitration panel rules for Chevron on Ecuador Amazon pollution case
AP | 20-Sep-2013
Plaintiffs’ hopes for collecting a $19 billion judgment awarded by an Ecuadorean court against Chevron Corp. for oil contamination in the Amazon have suffered another potential setback.
Ecuador , investor-state disputes | ISDS , US
Chevron wins major arbitration victory
CNN | 19-Sep-2013
In an apparent coup for the oil giant’s efforts to undermine a $19 billion environmental judgment in Ecuador, an international tribunal has suggested that the Ecuadorians’ claims in that case were all settled and extinguished in 1995
Ecuador , investor-state disputes | ISDS , US
"Investment" narrowly construed under NAFTA in Apotex v. US
Mondaq | 4-Sep-2013
In a recent NAFTA Investor-State claim brought against the United States by Apotex Inc., Canada’s largest producer of generic drugs, the Tribunal upheld the US’ preliminary objections to jurisdiction on the grounds that the company’s efforts to win approval for generic drugs in the US market did not make it an "investor" under NAFTA Chapter Eleven.
Canada , investor-state disputes | ISDS , NAFTA | USMCA , US
Growth in global disputes brings big paychecks for law firms
NY Times | 27-Aug-2013
Debt woes, broken contracts and soured business deals may cost global investors billions in losses and create seemingly never-ending headaches for policy makers. But there is a set of specialists profiting from such geopolitical problems: arbitration lawyers.
corporate interests , investor-state disputes | ISDS , US
Lilly ramps up NAFTA fight over loss of patents
Globe and Mail | 17-Jul-2013
US pharmaceutical giant Eli Lilly and Co. has escalated a challenge it launched last year against Canada’s patent rules under the North American free-trade agreement, and is now demanding $500-million in compensation after the company lost its Canadian patents on two drugs.
Canada , investor-state disputes | ISDS , NAFTA | USMCA , US