Europe

European Union (EU) member states have signed over 1300 investment treaties with third countries, in addition to some 200 between EU members. Non-EU European states are party to over 500 treaties. Most of these contain investor-state dispute settlement (ISDS) provisions, which enable foreign corporations to take ISDS claims against states if they deem their profits or potential investment to be affected by new laws or changes in policy.

The EU has ratified four agreements with an ISDS mechanism: the Energy Charter Treaty (ECT), to which 53 European and Central Asian countries are party, the Comprehensive Economic Trade Agreement (CETA) with Canada, and agreements with Vietnam and Singapore. Only the ECT has been fully in force. The ISDS provisions in the three others will be implemented after all member states have ratified them.

These three deals also include a revised ISDS mechanism created by the European Commission, known as the investment court system. Many critics say that this new system is largely window-dressing and does not address the core of the problem behind investor-state dispute measures.

In 2015, the European Commission asked the EU member states to terminate their intra-EU bilateral investment treaties (BITs), arguing they are incompatible with EU law, which was confirmed by the Court of Justice of the European Union in its “Achmea” decision.

As of April 2020, the number of intra-EU ISDS disputes amounted to 170, approximately 17% of all cases globally, 76 of which having been brought under the ECT.

Overall investors from European countries have initiated over 600 ISDS cases, half of which are against non-European states. European countries have been targeted in about 350 cases. Grouped together, investors from EU member states have launched the majority of total disputes (over 400).

Spain, the Czech Republic, Poland, Russia and Ukraine have been among the ten most frequent respondent states, while the Netherlands, the United Kingdom, Germany, Spain, France, Luxembourg, Italy and Switzerland have been among the ten most frequent home states of the investor.

The most well-known cases include:

Yukos (Isle of Man) vs. Russia: US$50 billion awarded in 2014 to majority shareholders of the oil and gas company (ECT invoked).

Eureko (Netherland) vs. Poland: case settled in 2005 for about €2 billion in favour of the investor, a large European insurance company (Netherland-Poland BIT invoked).

Ceskoslovenska Obchodni Banka (Czech Republic) vs. Slovak Republic: €553 million awarded in 2004 to the investor, one of the largest commercial banks in the Czech Republic (Czech Republic-Slovak Republic BIT invoked).

Photo: War on Want

(April 2020)

ABC Bourse | 12-Jan-2018
L’Argentine paiera au groupe français 275 millions de dollars (environ 230 millions d’euros), soit 75% de la somme qu’il devait à Suez.
Bloomberg | 12-Jan-2018
French co. agreed to $275 million to settle 12-year dispute. Engie is the biggest shareholder in water, sewer company.
Milieu Defensie | 12-Jan-2018
The French oil company Total evicts people from their land in Uganda to make room for an oil processing facility.
Gus Van Harten (blog) | 11-Jan-2018
Observers of the ISDS debate in Europe should be concerned when the official position of an Advocate General before the European Court of Justice can be tied to the ISDS industry.
Reuters | 9-Jan-2018
Moldovan businessman Anatolie Stati will ask bailiffs to sell a $5.2 billion stake in the Kashagan oil field owned by a Kazakh sovereign wealth fund if Astana refuses to pay a $500 million arbitration award.
Economic Times | 9-Jan-2018
Vodafone Group has said it would agree to consolidate its two international arbitrations initiated against India in connection with a tax demand of ₹11,000 crore, if the country were to agree as well.
Cision | 8-Jan-2018
The Dutch court held that Kazakhstan is and will remain the sole shareholder of Samruk and that Samruk’s board is controlled by Kazakhstan.
European Law Blog | 8-Jan-2018
The Opinion misses the much needed opportunity for a thorough and balanced reflection on the many challenges that ISDS, and investment disputes in general, pose to the EU legal and judicial system.
IELP Blog | 8-Jan-2018
The recent Eiser v. Spain ICSID award is yet another example of a state being condemned to pay a large monetary sum merely because an investor has been economically disadvantaged by a reasonable and necessary regulatory change.
CIAR Global | 4-Jan-2018
La mayoría de los arbitrajes contra España han sido iniciados por inversores de otros Estados de la UE, por lo que esta situación es contraria al Derecho de la Unión.