North America

Canada and the United States have signed about 180 investment agreements.

They are both party to the North American Free Trade Agreement (NAFTA) with Mexico. Sixty-seven disputes were launched under NAFTA.

NAFTA was recently renegotiated and replaced by the US-Mexico-Canada Agreement (USMCA) that was signed in November 2018 and is yet to enter in force. The investor-state dispute settlement (ISDS) mechanism between the US and Canada, and between Mexico and Canada has been removed – even though it is included in the Trans-Pacific Partnership, to which both Mexico and Canada belong. Only limited claims are allowed between the US and Mexico, after exhaustion of local remedies. But the ISDS mechanism has been maintained between the two countries for claims pertaining to Mexico’s oil and gas sector.

The US is also party to the Dominican Republic–Central America Free Trade Agreement (CAFTA), with six Central American states. US investors have initiated all 11 known CAFTA disputes.

Canada has an investment treaty with China and is party to the Comprehensive Economic and Trade Agreement (CETA) with the European Union. CETA includes a revised ISDS mechanism, the investment court system, which has been critiqued for not addressing the core of the problem behind the mechanism.

US investors have extensively used the ISDS mechanism. They have initiated around 180 disputes, over 17% of all known cases, making the US the most frequent home state of investors. The US has never lost an ISDS case.

Canadian investors have initiated about 50 disputes and Canada has been the fourth most frequent target among ‘developed’ states (9th globally), with 29 cases.

(April 2020)

CIAR Global | 24-Nov-2020
La patronal de las compañías aseguradoras estadounidenses ha advertido a Chile del posible recurso a mecanismos incluidos en el Tratado de Libre Comercio Estados Unidos-Chile ante el cambio de la normativa que influye a las compañías de seguros que trabajan en el mercado chileno.
JDsupra | 16-Nov-2020
Vento’s claims ultimately failed on the merits because Vento could not show irregularities in the Mexican tax authority’s treatment of its investment.
CIAR Global | 1-Nov-2020
The dispute stems from the Community of Parán’s actions, which invaded Lupaka’s project held through Invicta Mining Corp.
Globe Newswire | 29-Oct-2020
The dispute stems from the Community of Parán’s actions, which invaded Lupaka’s project held through Invicta Mining Corp.
EJIL: Talk! | 21-Oct-2020
Why retain ISDS, this neo-colonial vestige that is not supported by consistent evidence that it contributes to advancing development or the rule of law?
IISD | 14-Oct-2020
Le tribunal rejeta tous ces recours sur le fond, à l’exception d’un recours fondé sur le traitement national, qui, d’après le tribunal, ne relevait pas de sa compétence.
IISD | 14-Oct-2020
The tribunal dismissed all claims on merits, apart from the claim under national treatment, which was considered outside the tribunal’s jurisdiction.
CIAR Global | 30-Sep-2020
Aecon presenta diez años después su demanda contra Ecuador ante la Corte Permanente de Arbitraje (CPA), en esta ocasión en solitario y reclamando exenciones de impuestos.
Reuters | 1-Sep-2020
Barrick Gold Corp has lost a court challenge in Papua New Guinea over rights to a highlands gold mine and intends to appeal to the country’s Supreme Court.
Mining.com | 28-Aug-2020
Canada’s Barrick Gold said it would challenge the Papua New Guinea government alleged move to grant a 20-year lease for the Porgera gold mine to a state-backed firm.

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