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)

Oil Price | 25-May-2018
The amount of the frozen assets, when compared to the US$520 million court award, is pretty hefty, unprecedented.
EIN | 24-May-2018
The Stati Parties have requested to enforce the award issued in their favor including by attaching Kazakh state commercial assets in the United States.
Deutsch Welle | 24-May-2018
The German cabinet has confirmed that two utilities operating in Germany are entitled to compensation for losses stemming from the country’s nuclear phaseout. The move is in line with an earlier top court ruling.
Metro | 24-May-2018
Le projet de traité d’arbitrage liant la Belgique et le Luxembourg à Oman a été approuvé, par le Parlement de Wallonie
Le Figaro | 24-May-2018
Il sera à l’avenir possible de scinder les accords commerciaux en deux pour éviter que les traités puissent être stoppés par un seul Parlement national ou régional, comme ce fut le cas dans le passé pour le Ceta.
Business Standard | 23-May-2018
India may not accept international arbitration orders annulling tax demands on British firms Vodafone Plc and Cairn Energy.
Natural Gas World | 23-May-2018
Ukraine is seeking damages from Russia following the expropriation of assets in the Crimea in 2014.
Defense News | 23-May-2018
The Polish General Counsel has announced that Airbus Helicopters has withdrawn its application for international arbitration over its dispute with Poland.
Le Petit Journal | 22-May-2018
L’avionneur a décidé d’abandonner la procédure d’arbitrage suite au jugement de la Cour de justice de l’UE dans l’affaire Achmea.
No al TTIP | 21-May-2018
Tras los cinco arbitrajes ya resueltos, la balanza se decanta ya en contra de España, que tiene abiertos 40 litigios de este tipo con 7.500 millones en reclamaciones.