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)

iPolitics | 16-Apr-2021
NAFTA-investor lawsuits have cost Canadian taxpayers more than $376 million over the last 25 years, and could cost even more in the years ahead.
CCPA | 15-Apr-2021
The removal of investor–state dispute settlement (ISDS) from the renegotiated NAFTA was a critical victory but Canada, the US and Mexico continue to be enmeshed in an extensive web of bilateral and regional accords containing ISDS.
Pulse | 6-Apr-2021
According to sources related to the Lone Star ISD, the tribunal is expected to give a final ruling on Lone Star versus the Korean government case that has dragged on for nine years within the first half.
Mining Weekly | 1-Apr-2021
Rusoro Mining reports that the French Supreme Court has overturned the decision of the Paris Court of Appeal, which had annulled part of the damages portion of the arbitral award previously rendered in favour of the company.
SOMO | 17-Mar-2021
How investment treaties and investor-to-state dispute settlement grant foreign investors greater rights than Dutch and EU law.
Jacobin | 5-Mar-2021
Free-trade agreements enable companies to sue governments if they interfere with profit-making activities, no matter how destructive. These trade deals put us in an antidemocratic straitjacket — it’s time we got rid of them.
MRT | 3-Mar-2021
Canadian mining company First Majestic Silver Corp submitted a request for arbitration based on NAFTA, due to the tax debt and its differences with the Mexican government.
Interfax | 10-Feb-2021
US Optima Ventures intend to file a lawsuit against the United States seeking compensation of $23 million in response to two civil forfeiture actions targeting their assets in Louisville.
West Law | 8-Feb-2021
Alberta’s Premier said that the Canadian province, which has an equity in the now-canceled Keystone XL pipeline, may seek compensation under investor-protection provisions still in effect under NAFTA
45 Secondes | 5-Feb-2021
L’Alberta, le cœur pétrolier du Canada, pourrait demander une compensation aux États-Unis après que le président nouvellement investi, Joe Biden, ait déménagé pour réparer le pipeline Keystone XL.

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