Energy & environment

Most investor-state disputes (ISDS) have concerned environmental matters. Corporations are using the ISDS system found in trade and investment agreements to challenge environmental policies. As of end of 2019, 41% of all ICSID cases were energy and natural resources-related.

Most well-known cases include:

• Lone Pine Resources (US) vs. Canada: the investor challenged Quebec’s moratorium on the controversial practice of hydraulic fracturing, or fracking, for natural gas. The provincial government declared the moratorium in 2011 so as to conduct an environmental impact assessment of the extraction method widely accused of leaching chemicals and gases into groundwater and the air. Case pending (NAFTA invoked).

• Bilcon (US) vs. Canada: the US industry challenged Canadian environmental requirements affecting their plans to open a basalt quarry and a marine terminal in Nova Scotia. In 2015 the ISDS tribunal decided that the government’s decision hindered the investors’ expectations. Bilcon won and received US$7 million in damages, plus interest (NAFTA invoked).

• Vattenfall (Sweden) vs. Germany: in 2007 the Swedish energy corporation was granted a provisional permit to build a coal-fired power plant near the city of Hamburg. In an effort to protect the Elbe river from the waste waters dumped from the plant, environmental restrictions were added before the final approval of its construction. The investor initiated a dispute, arguing it would make the project unviable. The case was ultimately settled in 2011, with the city of Hamburg agreeing to the lowering of environmental standards (ECT invoked).

Photo: Kris Krug / CC BY-NC-ND 2.0

(March 2020)

The News | 18-Sep-2020
The World Bank’s ICSID has granted Pakistan a stay order of six months in the Reko Diq case in which Islamabad was awarded with a whopping $6 billion fine.
Nasdaq | 17-Sep-2020
The District Court of The Hague ruled in favor of Chevron in its dispute with the Republic of Ecuador, upholding a 2018 arbitral award rendered by an international tribunal administered by the Permanent Court of Arbitration.
GlobeNewswire | 17-Sep-2020
Odyssey filed the first memorial, alleging that Mexico wrongfully denied environmental approval of the ExO Phosphate project in breach of NAFTA.
Climate Home News | 16-Sep-2020
Negotiators have ruled out an overhaul of private courts that allow energy companies to sue national governments when climate change policies hurt their profits.
Afronomics Law | 11-Sep-2020
Tanzania’s reforms show that the claim that African states should regard ISDS mechanism as the preferred method for resolving investment disputes is not only very contested, but that there are legitimate grounds for those contestations.
Climate Home News | 10-Sep-2020
A British oil and gas company is using a controversial energy treaty to sue Slovenia, after being required to carry out an environmental impact assessment
First News | 10-Sep-2020
Australian mining firm Prairie Mining has launched international arbitration proceedings against Poland, claiming damages for the alleged hindering of the development of its two coal mines located in the country.
CIAR Global | 9-Sep-2020
La gasística española Naturgy podría acudir a arbitraje de inversiones contra Perú tras su salida del mercado peruano donde operaba el proyecto Camisea.
Africa Intelligence | 9-Sep-2020
Après plusieurs mois à menacer de lancer des procédures d’arbitrage contre l’Etat tanzanien pour annulation de leurs permis miniers, trois sociétés ont décidé de concrétiser leur action.
New York Times | 9-Sep-2020
Pakistan is seeking the reversal of a $5.8 billion penalty imposed by an international tribunal for denying a mining lease to an Australian company, saying that paying the fine would hinder its handling of the coronavirus pandemic.