Energy & environment

Most investor-state disputes (ISDS) have concerned environmental matters. Corporations are using the ISDS system found in trade and investment agreements to challenge environmental policies. As of end of 2019, 41% of all ICSID cases were energy and natural resources-related.

Most well-known cases include:

• Lone Pine Resources (US) vs. Canada: the investor challenged Quebec’s moratorium on the controversial practice of hydraulic fracturing, or fracking, for natural gas. The provincial government declared the moratorium in 2011 so as to conduct an environmental impact assessment of the extraction method widely accused of leaching chemicals and gases into groundwater and the air. Case pending (NAFTA invoked).

• Bilcon (US) vs. Canada: the US industry challenged Canadian environmental requirements affecting their plans to open a basalt quarry and a marine terminal in Nova Scotia. In 2015 the ISDS tribunal decided that the government’s decision hindered the investors’ expectations. Bilcon won and received US$7 million in damages, plus interest (NAFTA invoked).

• Vattenfall (Sweden) vs. Germany: in 2007 the Swedish energy corporation was granted a provisional permit to build a coal-fired power plant near the city of Hamburg. In an effort to protect the Elbe river from the waste waters dumped from the plant, environmental restrictions were added before the final approval of its construction. The investor initiated a dispute, arguing it would make the project unviable. The case was ultimately settled in 2011, with the city of Hamburg agreeing to the lowering of environmental standards (ECT invoked).

Photo: Kris Krug / CC BY-NC-ND 2.0

(March 2020)

El Confidencial | 7-Aug-2019
El Ciadi ha dictado un laudo en el que condena a España a indemnizar con 41 millones de euros a SolEs Badajoz, una sociedad de origen alemán.
Renewables Now | 7-Aug-2019
Spain will have to pay EUR 41 million to German solar investor SolEs Badajoz GmbH for retroactively cutting long-term premiums for renewable energy projects.
The Nation | 6-Aug-2019
In June 2000 the government in power signed a joint venture with Pakistan getting 25% and BHP getting bulk 75%. It was in violation of the internationally established practice of sharing half revenues.
War on Want | 5-Aug-2019
UK registered mining company Lydian is using corporate courts to bully the Armenian government into cracking down on public protests that have successfully resisted a gold mine.
The Independent | 5-Aug-2019
The Armenian government is currently being sued by a corporation for two thirds of its entire government budget. If the UK crashes out on 31 October, it could suffer a similar fate.
Panam Post | 1-Aug-2019
Canadian mining company Crystallex recently won a $1.4 billion judgment against the Venezuelan government, which nationalized its assets.
Thomson Reuters Fondation | 31-Jul-2019
Ukraine’s state energy group Naftogaz has asked the Hague Permanent Court of Arbitration to force the Russian Federation to pay the Ukrainian company $5.2 billion compensation for assets lost in annexed Crimea.
Daily Times | 30-Jul-2019
It is astounding that the Supreme Court judgment is being criticised due to an unfair award by the ICSID tribunal against Pakistan when that judgment is completely defensible.
Euractiv | 29-Jul-2019
The Nord Stream 2 pipeline company has asked the Court of Justice of the EU to annul the amendments to the Gas Directive but Nord Stream 2 reserves itself this option of resorting to legal arbitration as well.
Express Tribune | 25-Jul-2019
The question for Pakistan now is what lesson can be learned from events that led to the ICSID Tribunal making a $5.9 billion award against the Government of Pakistan.