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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)

Canada says ’hard no’ on changing NAFTA dispute resolution
Washington Examiner | 30-Aug-2017
Canada will oppose any effort to change the investor-state dispute resolution system in the North American Free Trade Agreement, sources tell the Washington Examiner
Canada , investor-state disputes | ISDS , NAFTA | USMCA
Trump’s penchant for deal-making evident in push to renegotiate KORUS
Hankyoreh | 21-Aug-2017
The Moon administration needs to stand up to Trump with the confidence of a party ready to accept termination of the agreement, writes The Hankyoreh
investor-state disputes | ISDS , Korea , US
Crystallex moves to seize Petroleos de Venezuela Holding & Citgo
Latin America Herald Tribune | 15-Aug-2017
Crystallex — owed $1.4 billion for the expropriation of its Venezuela mining subsidiary — has moved U.S. Federal Court in Delaware to seize Petroleos de Venezuela Holding, the parent company of PDVSA’s American unit Citgo Holding.
energy , investor-state disputes | ISDS , US , Venezuela
«Le moratoire de Québec était légitime», dit le Centre québécois en droit de l’environnement
Le Devoir | 12-Aug-2017
Québec était en droit d’instituer un moratoire sur la fracturation hydraulique et Ottawa ne devrait pas compenser Lone Pine.
Canada , energy , environment , investor-state disputes | ISDS , NAFTA | USMCA
Business groups to the administration: Keep ISDS in NAFTA
Politico | 10-Aug-2017
More than 100 U.S. business groups and associations are pushing the Trump administration to not only preserve investor-state dispute settlement and related provisions in an updated NAFTA agreement but to also strengthen them to further protect intellectual property and interests.
corporate interests , intellectual property , investor-state disputes | ISDS , NAFTA | USMCA , US
The Bilcon NAFTA tribunal: a clash of investor protection and sustainability-based environmental assessments
SSRN | 4-Aug-2017
The Bilcon tribunal ruling raises a number of concerns about the ability of investor protection tribunals to properly assess whether a foreign investor has been treated fairly under a domestic environmental assessment process.
Canada , environment , investor-state disputes | ISDS , NAFTA | USMCA
India may deviate from model BIT to meet Canada’s demands
The Hindu | 4-Aug-2017
As talks with Canada began before model text was approved by Cabinet, deviations may be allowed.
Canada , India , investment | BITs , investor-state disputes | ISDS
Harsh sentencing of Aymara leader reveals the politics of criminalization in Peru
Intercontinental Cry | 27-Jul-2017
This past month, eighteen Aymara community leaders endured the final stages of a trial that had them facing up to 28 years in prison and massive fines for their alleged roles in the 2011 ‘Aymarazo’ protests against the Santa Ana silver mine on the Peru-Bolivia border.
actions | resistance , Canada , indigenous peoples , investor-state disputes | ISDS , mining , Peru
Minera Crystallex gana orden judicial en corte EEUU contra china Haitong sobre activos de Venezuela
Reuters | 17-Jul-2017
La minera canadiense Crystallex ganó en una corte estadounidense una medida que prohíbe a la empresa china Haitong International Securities Group transfiera activos propiedad de Venezuela.
Canada , investor-state disputes | ISDS , mining , Venezuela
Crystallex wins court order against Haitong over Venezuela assets
Reuters | 17-Jul-2017
Canadian miner Crystallex has won U.S. court approval to bar China’s Haitong International Securities Group Ltd from transferring securities owned by Venezuela, in a move to recoup damages from an expropriation by the OPEC nation.
Canada , investor-state disputes | ISDS , mining , Venezuela