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)

Counter Punch | 18-Feb-2015
The corporate media would prefer that people know nothing about the Trans-Pacific Partnership (TPP), Canada-European Union Comprehensive Economic and Trade Agreement (CETA), the US-EU Transatlantic Trade and Investment Partnership (TTIP) and other trade deals.
Stop TTIP | 13-Feb-2015
A report authored by Prof. Dr. Siegfried Broß and recently published by the German Hans Böckler Stiftung concludes that the Investor-State-Dispute Settlement (ISDS) tribunals currently planned to be included in the TTIP and CETA free-trade agreements are not in accordance with Germany’s constitution.
JD Supra | 9-Feb-2015
Three recent ICSID decisions involving Ecuador highlight the importance of language addressing the status of taxes in investment treaties.
EurActiv | 6-Feb-2015
The French Senate united on Tuesday (3 February) in its opposition to the Investor-State Dispute Settlement mechanism (ISDS).
EurActiv | 5-Feb-2015
En France, UMP et extrême-gauche expriment les mêmes réserves sur les procédures d’arbitrage qu’ils appellent à modifier dans une résolution adoptée à l’unanimité.
EurActiv | 27-Jan-2015
Trade negotiations between the EU and Canada concluded in October 2013, but France and Germany now want to make changes to the CETA agreement’s investor-state dispute settlement (ISDS) clause.
EurActiv | 27-Jan-2015
La France et l’Allemagne veulent modifier la clause de règlement des différends entre investisseurs et Etats de l’accord commercial UE-Canada, dont les négociations sont pourtant terminées depuis octobre 2013.
CCSI | 25-Jan-2015
In 2014, the US again emerged the winner in investor-state arbitration. But it did suffer losses on a number of important issues, and those losses leave it more vulnerable to future claims, litigation costs, and potential liability.
Techdirt | 25-Jan-2015
Even if CETA is rejected in Europe, claims under the ISDS chapter would still be possible up to three years afterwards for investments made during the provisional period.