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)

Kluwer Arbitration Blog | 24-Apr-2017
The role of third party funding in investment arbitration raises unique concerns for policy-makers because, ultimately, a State’s taxpayers will be liable for satisfaction of any award favoring the claimant.
Global Justice Now | 24-Apr-2017
A new briefing has outlined the likely elements of a UK-US trade deal and argues that it would contain more extreme forms of all the controversial elements of the deal that was being negotiated between the EU and the USA.
Financial Post | 24-Apr-2017
Canadian miner Gran Colombia Gold has filed a US$700 million lawsuit against Colombia under the Colombian-Canadian free trade agreement after the government ordered the company to cease operations at the El Burro site in Marmato.
Reuters | 19-Apr-2017
El Salvador froze bank accounts and assets belonging to OceanaGold Corp after the mining company refused to pay the country $8 million as mandated by an international court.
The Whig | 14-Apr-2017
The Ontario government says it has paid a $28-million award that a NAFTA tribunal ruled was owed to a wind power company over a provincial offshore wind moratorium.
Politico | 11-Apr-2017
The Teamsters labor union has escalated an investor dispute against Peru, arguing that its members’ pensions could be thrown into jeopardy as a result of the government’s alleged failure to pay investors $5 billion worth of debt tied up in land bonds.
The Hindu | 10-Apr-2017
Most have expired; partners unwilling to renew them under Finance Ministry’s model draft
IA Reporter | 5-Apr-2017
Ukraine has settled a dispute with American pharmaceutical company Gilead Sciences Inc., following the company’s pursuit of legal remedies in both domestic courts and via investment arbitration.
Reuters | 3-Apr-2017
U.S. oil firm Cobalt said it would seek arbitration if Angola’s state-run Sonangol failed to extend license deadlines on two deepwater blocks
Ecofin | 3-Apr-2017
L’américain Cobalt Energy a déclaré qu’il ferait recours à un arbitrage international contre le gouvernement angolais si celui-ci ne prolonge pas immédiatement sa licence sur deux blocs en eau profonde.