Dear Member of the World Investment Network

I am pleased to inform you that UNCTAD has updated its Investment Dispute Settlement Navigator. The ISDS Navigator is now up-to-date as of 31 July 2019.
 
Trends in ISDS cases are also covered by the World Investment Report 2019, which is scheduled for discussion at UNCTAD’s Trade and Development Board this week (Tuesday, 1 October 2019, 10 – 13 hours).
 
The ISDS Navigator update covers new cases, awards and arbitrator appointments compiled on the basis of public sources and specialized reporting services.

Key findings of the update:

• During the first seven months of 2019, investors brought at least 31 known investor-State dispute settlement (ISDS) cases pursuant to international investment agreements (IIAs).
• On the basis of newly revealed information, the number of known cases for 2018 was adjusted to 76. Additional cases have also surfaced for previous years.
• As of 31 July 2019, the total number of known treaty-based ISDS arbitrations had reached 983.

As some arbitrations can be kept fully confidential, the actual number of disputes filed in this and previous years is likely to be higher.

Emerging ISDS trends for 2019:

• The 31 known ISDS cases recorded by the end of July 2019 were brought against 25 countries. They were directed at developing economies (20 cases), transition economies (seven cases) and developed economies (four cases).
• Developed-country investors initiated most the known cases (21 out of 31). The highest numbers of cases were brought by investors from the United Kingdom (five cases) and the United States (three cases).
• About 70 per cent of cases relied on IIAs signed in the 1990s or earlier (22 cases). The remaining nine cases were based on treaties signed between 2000 and 2010. The most frequently invoked IIAs were the Energy Charter Treaty (1994) (with three cases), followed by NAFTA (1992) and the OIC Investment Agreement (1981) with two cases each. Two of the three cases initiated under the Energy Charter Treaty were intra-EU disputes.

The total ISDS case count may reach one thousand by the end of 2019.
 
UNCTAD’s High-level IIA Conference 2019 taking place in Geneva on Wednesday, 13 November, will track progress on the reform of investment dispute settlement and actions to address old-generation treaties (click here to register).
 

Best regards,
 
James X. Zhan
Director, Investment and Enterprise
Lead, World Investment Report
United Nations Conference on Trade & Development
Palais des Nations, Geneva
unctad.org/wir
investmentpolicy.unctad.org

Law professor explains the dangers of ISDS

Published on Oct 9, 2015

Alessandra Arcuri, associate professor of economic international law at Erasmus University, explains what’s wrong with settlement courts like ISDS. The international trade agreement TTIP is said to give multinational corporations the power to sue foreign governments, moving the power balance even more in the favor of already powerful countries.

Erasmus University

What is ISDS?

Published on Feb 24, 2016

A brief explanation of Investor State Dispute Settlements.

Scripps Howard Foundation Wire

European Parliament Seeks ISDS Curbs in U.S. Trade Pact

by Jonathan Stearns

July 8, 2015 — 9:20 AM BRT

The European Parliament demanded limits on legal protection for foreign investors in any free-trade agreement with the U.S., highlighting the political sensitivity of an issue that could scuttle a trans-Atlantic deal.
The European Union assembly said provisions on Investor-State Dispute Settlement, or ISDS, in any EU-U.S. commercial pact must ensure that foreign investors have no greater rights than do domestic investors.
In a resolution approved on Wednesday in Strasbourg, France, the 28-nation Parliament also called for an arbitration system where “the jurisdiction of courts of the EU and of the member states is respected, and where private interests cannot undermine public policy objectives.”
An ISDS clause could allow foreign investors to use arbitration panels instead of domestic courts to make claims against a national government when an investment is harmed, for example through expropriation. Such a provision is controversial in some EU capitals because of the constraints it could place on European governments’ ability to regulate in the public interest, becoming a lightning rod in the process for skeptics of an EU-U.S. trade agreement in general.
The EU Parliament is weighing into the negotiations on a trans-Atlantic pact two years after they began, seeking to shape the outcome. The 751-seat assembly has the power to approve or reject, but not to amend, any final agreement.
ISDS Issue
“We’re putting up a fight to see to it that this is a good agreement,” Bernd Lange, head of the EU Parliament’s trade committee, said last month when the ISDS issue was so divisive that the assembly unexpectedly postponed its vote on the resolution. “If it is, we’ll say ‘yes.’ If it isn’t, we’ll say ‘no.’ ”
Deliberations on ISDS may signal the speed and ambition — or even the fate — of the planned Trans-Atlantic Trade and Investment Partnership, or TTIP, which the EU and U.S. began negotiating in mid-2013 in an effort to expand the world’s biggest economic relationship. Both sides are pushing to have much of a draft TTIP deal ready by year-end, with the main goals being to eliminate tariffs on goods, expand services markets, open public procurement and bolster regulatory cooperation.
The European Commission, the EU’s executive arm, last year suspended talks on ISDS with the U.S. in a bid to allay concerns in Europe about the matter. The commission completed a public consultation on the merits of negotiating an ISDS clause in TTIP in January, when EU Trade Commissioner Cecilia Malmstroem said the step faced “huge skepticism” in Europe while being “very important” to the U.S.
Seeking to restart deliberations with the U.S. on the issue, Malmstroem in the past several months has outlined ways to protect the right to regulate, to ensure the independence of arbitration tribunals, to enable appeals against ISDS-tribunal decisions and to rule out parallel claims by investors through domestic judicial systems and ISDS.

Fonte: Bloomberg Business