ISDS allows foreign investors to sue our Government

4 October 2018: Investor-State Dispute Settlement (ISDS) provisions in trade deals enable foreign investors to bypass national courts and sue governments in international tribunals if they can argue that a change in law or policy has harmed their investment.

The revamped NAFTA agreement between the US, Mexico and Canada, now called the United States-Mexico-Canada Agreement, will phase out ISDS between the US and Canada altogether after three years. The deal also limits the scope for ISDS cases between the US and Mexico to cases of direct government takeover of assets.

20 September 2018: Yet another country has rejected the undemocratic and non-transparent practices of international arbitration as a method for resolving investor-state disputes (ISDS). There is growing rejection of the inclusion of ISDS in trade agreements like the TPP.

As reported in The East African, Tanzania’s National Assembly on September 17 passed the Public Private Partnership (Amendment) Bill (2018), put forward by Attorney General Adelardus Kilangi.

August 14, 2018: A recent study published by the Columbia University Centre for Sustainable Investment evaluates the costs and benefits for states of investor-state dispute settlement (ISDS) provisions in trade and investment agreements. It concludes that expected benefits in terms of increased levels of foreign investment have not clearly materialized, whereas the costs have been unexpectedly high.

July 16, 2018: AFTINET has previously reported on decisions in 2017 and 2018 by the European Court of Justice which found that foreign investor rights to sue governments in international tribunals (ISDS) was incompatible with national sovereignty and EU law. This means the European Parliament cannot decided to ratify agreements containing ISDS, and that each national government has to vote on ratification of agreements if they contain ISDS. These decisions followed strong European public opposition to ISDS.

July 2, 2018: Centre Alliance Senator Rex Patrick last Friday succeeded in obtaining the total legal costs to Australia of defending its tobacco plain packaging laws in the case brought by Philip Morris tobacco company against the Australian Government under investor-state dispute settlement provisions.

June 4, 2018: Veolia, the giant French corporation which operates in Australia and world-wide, has finally lost its claim against Egypt over a waste management contract dispute in which they claimed compensation for an increase in the minimum wage under a new labour law. Its claim was for €174 million (A$268 million), and was launched in 2012.

18 May 2018: A new book by Canadian writer Joyce Nelson, Bypassing Dystopia: Hope-filled Challenges to Corporate Rule, gives insight into the Canadian government’s dogged support of Investor State Dispute Settlement (ISDS). It has been reviewed by journalist Damien Gillis here.

May 8, 2018: According to an Inside US Trade report dated May 3, Investor-State Dispute Settlement is still a key issue at the current session of North American Free Trade Agreement talks between the US, Mexico and Canada. US Trade Representative Robert Lighthizer appears determined to opt out of ISDS provisions, while big business groups are frantically lobbying to retain them.