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.

Photo: Public Citizen

(April 2020)

Politico | 20-Mar-2017
Canada has prevailed over pharmaceutical giant Eli Lilly in a long-running investor-state dispute the drug company filed under NAFTA’s investment chapter.
Daily Business Review | 17-Mar-2017
Lawyers for Exxon Mobil have asked a federal judge to order Venezuela to pay the company more than $188.3 million—the amount Exxon Mobil says it is still owed as repayment for the 2007 expropriation of its oil assets.
Alternatives Economiques | 15-Mar-2017
Le petit livre précis, informé et critique de la journaliste Haley Sweetland Edwards vient à point nommé pour expliquer les enjeux de la contestation contre les tribunaux d’arbitrage.
Romandie | 13-Mar-2017
La condamnation du Venezuela à verser 1,4 milliard de dollars à ExxonMobil pour la nationalisation d’un champ pétrolier sous le mandat d’Hugo Chavez a été annulée par une juridiction d’arbitrage internationale.
International Economic Law and Policy Blog | 13-Mar-2017
An ICSID Annulment Committee’s decision to reduce the damages to be paid to Exxon by $1.4 billion seems like a cause for celebration-a victory of economic sovereignty over Big Oil. But as gifts to economic justice go, this one is a Trojan horse indeed.
Reuters | 10-Mar-2017
A World Bank tribunal’s order for Venezuela to pay $1.4 billion in damages to Exxon Mobil Corp over nationalizations has been annulled
SAT PR | 10-Mar-2017
The Kyrgyz Republic has notified Stans that it filed a claim with the High Court of Justice to set aside the jurisdictional award rendered by the UNCITRAL Tribunal in favor of Stans.
El Tiempo | 9-Mar-2017
A la fecha, se sabe que al menos tres empresas legalmente constituidas en Canadá – Eco Oro Minerals, Tobie Mining-Cosigo Resources y Gran Colombia Gold – han activado procedimientos de arbitraje internacional de inversión contra nuestro país, a partir las salvaguardas que el TLC en les otorga.
Lexology | 8-Mar-2017
A Canadian company, Gold Reserve Inc, disputed a permit revocation that affected a gold and copper ore deposit exploration project in Venezuela.
Kluwer Arbitration Blog | 7-Mar-2017
Two recently finalized cases against Latin America states provide several noteworthy points for further debates on the host states’ counterclaims towards investors.