Europe

European Union (EU) member states have signed over 1300 investment treaties with third countries, in addition to some 200 between EU members. Non-EU European states are party to over 500 treaties. Most of these contain investor-state dispute settlement (ISDS) provisions, which enable foreign corporations to take ISDS claims against states if they deem their profits or potential investment to be affected by new laws or changes in policy.

The EU has ratified four agreements with an ISDS mechanism: the Energy Charter Treaty (ECT), to which 53 European and Central Asian countries are party, the Comprehensive Economic Trade Agreement (CETA) with Canada, and agreements with Vietnam and Singapore. Only the ECT has been fully in force. The ISDS provisions in the three others will be implemented after all member states have ratified them.

These three deals also include a revised ISDS mechanism created by the European Commission, known as the investment court system. Many critics say that this new system is largely window-dressing and does not address the core of the problem behind investor-state dispute measures.

In 2015, the European Commission asked the EU member states to terminate their intra-EU bilateral investment treaties (BITs), arguing they are incompatible with EU law, which was confirmed by the Court of Justice of the European Union in its “Achmea” decision.

As of April 2020, the number of intra-EU ISDS disputes amounted to 170, approximately 17% of all cases globally, 76 of which having been brought under the ECT.

Overall investors from European countries have initiated over 600 ISDS cases, half of which are against non-European states. European countries have been targeted in about 350 cases. Grouped together, investors from EU member states have launched the majority of total disputes (over 400).

Spain, the Czech Republic, Poland, Russia and Ukraine have been among the ten most frequent respondent states, while the Netherlands, the United Kingdom, Germany, Spain, France, Luxembourg, Italy and Switzerland have been among the ten most frequent home states of the investor.

The most well-known cases include:

Yukos (Isle of Man) vs. Russia: US$50 billion awarded in 2014 to majority shareholders of the oil and gas company (ECT invoked).

Eureko (Netherland) vs. Poland: case settled in 2005 for about €2 billion in favour of the investor, a large European insurance company (Netherland-Poland BIT invoked).

Ceskoslovenska Obchodni Banka (Czech Republic) vs. Slovak Republic: €553 million awarded in 2004 to the investor, one of the largest commercial banks in the Czech Republic (Czech Republic-Slovak Republic BIT invoked).

Photo: War on Want

(April 2020)

CIAR Global | 6-Oct-2020
Masdar ha renunciado a los 80 millones de euros del laudo que le favoreció en el arbitraje de inversiones mantenido con España ante CIADI por las reformas energéticas de las renovables.
IIED | 5-Oct-2020
A complex set of international legal measures protecting the fossil fuel industry risks significantly increasing the cost of moving to green energy and tackling climate change, a new report reveals.
Greek City Times | 5-Oct-2020
Greek investors who were affected by the Cyprus bail-in have sought legal resort and now seem to stand a fair chance to have their case tried and possibly recuperate a portion of their losses in a mass arbitration to be held before the ICSID.
Clean Energy Wire | 5-Oct-2020
The German government writes that around 21.7 million euros have been spent on lawyers, expert witnesses and court fees.
CIAR Global | 2-Oct-2020
Un empresario español importador de productos gourmet en el mercado mexicano ha notificado al Gobierno de México de su intención de acudir a arbitraje de inversiones apoyándose en el APPRI España-México por violación de los artículos relacionados con “Niviel mínimo de trato” y “Nacionalizacion y expropiación”.
CIAR Global | 2-Oct-2020
España ha obtenido la suspensión de dos laudos relacionados con las arbitrajes de las renovables ante tribunales estadounidenses.
Yahoo | 2-Oct-2020
Following the effective expropriation of a legally obtained asset by the Georgian National Communication Commission, NEQSOL have announced that their dispute with Georgia will be referred to the ICSID.
Africa Intelligence | 1-Oct-2020
Le groupe koweïtien Al Kharafi veut faire confirmer ses saisies des actifs français du fonds souverain libyen LIA. Mais la sentence arbitrale dont il se prévaut a été annulée par la justice égyptienne.
The Quint | 29-Sep-2020
In the sorry saga of the Vodafone tax dispute, how did we get here? The original error lies with India’s tax laws.
Albanian Daily News | 28-Sep-2020
KURUM company sued Albania at the International Court of Arbitration asking EUR 100 mln for termination of the contract of the container terminal in Durresi Harbor.