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)

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SDP Noticias | 29-Oct-2018
Un grupo de 46 inversionistas mexicanos demandaron ante instancias internacionales al gobierno de España, a quien acusan de un trato discriminatorio que les hizo perder al menos 470 millones de euros, equivalentes a unos 10 mil 500 millones de pesos mexicanos.
Le Monde | 27-Oct-2018
The documents highlight for the first time the pressure placed on the French parliament by a foreign company’s threat to use the ISDS mechanism.
Citizen Digital | 23-Oct-2018
A case filed by Cortec Mining Ltd and two others against the Republic of Kenya under the Kenya-UK BIT amounting to Ksh.200billion has been dismissed.
Korea Herald | 15-Oct-2018
Swiss elevator maker, Schindler Group, has officially filed for an investor state dispute settlement against the Korean government seeking US$300 million in compensation for losses over its approval of paid-in capital increase of Hyundai Elevator
CincoDías | 8-Oct-2018
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The East African | 8-Oct-2018
Tanzania has terminated its Bilateral Investment Agreement with the Netherlands that East African and Dutch civil society had said was biased against the country.