Financial stability

Investor-state dispute settlement (ISDS) is one of the greatest threats to the re-regulation of finance. ISDS empowers the very firms that financial regulation seeks to govern. These firms can bypass host country domestic courts and directly challenge domestic policies in a parallel system of justice.

Financial and non-financial firms have increasingly used ISDS provisions in trade agreements to challenge financial regulations and emergency financial stability measures.

Most well-known cases include:

• Investors vs. Argentina: When the country froze its utility rates and devaluated its currency in response to its 2001-2002 financial crisis, it was hit by over 40 lawsuits from investors, including Suez, Vivendi (France) and Anglian Water (UK). By January 2014, Argentina had been ordered to pay a total of US$980 million (various BITs invoked).

• Poštová Banka (Slovakia) & Istrokapital (Cyprus) vs. Greece: the Slovak bank and its Cypriot investor sued Greece on account of the restructuring of the country’s sovereign debt, after having bought Greek government bonds at a knockdown value. The investors lost the case. (Greece-Slovakia & Cyprus-Greece BITs invoked).

• Saluka (Netherlands) vs. Czech Republic: the Dutch investment corporation filed an ISDS dispute against the Czech government for not bailing out a private bank, in which the company had a stake, in the same way that the government bailed out banks in which the government had a major stake. The bailouts came in response to a widespread bank debt crisis. The investor was awarded US$236 million (Czech Republic-Netherlands BIT invoked).

Photo: Maalokki / CC BY 2.0

(March 2020)

Nepali Times | 7-May-2019
Axiata UK may be required to exhaust local remedies before resorting to arbitration under the UK-Nepal investment treaty
Mobile World Live | 29-Apr-2019
Axiata Group’s UK subsidiary and Nepal mobile unit filed a request for arbitration with the International Centre for the Settlement of Investment Disputes, regarding a capital gains tax bill levied by Nepali authorities.
Reuters | 19-Apr-2019
Oman’s sovereign wealth fund has withdrawn an 80 million euro claim against Bulgaria over the collapse of Corporate Commercial Bank (Corpbank), the Bulgarian finance ministry said.
BNE Intellinews | 11-Apr-2019
Atlas Group is seeking payment of €500mn in damages from Montenegro at an international court.
Times of India | 11-Mar-2019
Cairn Energy said it expects the long-running arbitration process against the Indian authorities over retrospective taxation to be concluded before late 2019.
South Centre | 7-Mar-2019
The broad language in investment agreements has allowed investor-state dispute settlement tribunals to scrutinize tax measures adopted by States, and determine that such measures resulted in a breach of State’s obligations under the agreement.
Interfax | 19-Feb-2019
The Permanent Court of Arbitration has announced a partial arbitration decision in favor of PrivatBank and against Russia. The question of the amount of compensation is left for the next stage of the arbitration proceedings.
Le Monde | 12-Feb-2019
27 associations, syndicats et ONG appellent les députés européens à rejeter un projet d’accord commercial entre l’UE et Singapour, comparable au très contesté CETA.
SOMO | 11-Feb-2019
An analysis of its impact on managing government bonds and capital flows.
Stop ISDS | 11-Feb-2019
The most worrying thing about the EU-Singapore deal is not the risk that Singapore firms themselves pose, but the fact that the agreement looks set to be used as a model for reinvigorating ISDS.

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