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)

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West Law | 8-Feb-2021
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Australian Financial Review | 4-Feb-2021
Google and Facebook could sue the government for billions of dollars over a proposed law to force the digital giants to pay publishers for displaying news content, by seizing on investment clauses in the Australia-Singapore trade agreement.
European Commission | 1-Feb-2021
The EU and Canada adopted four decisions putting in place the Investment Court System provisions agreed in the EU-Canada Comprehensive Economic and Trade Agreement (CETA).
Public Citizen | 28-Jan-2021
ISDS tribunals have ordered governments to pay corporations more than $989 million in compensation after ISDS attacks launched just under U.S. agreements.
The Conversation | 26-Jan-2021
The owner of Keystone XL — TC Energy (previously TransCanada) — used NAFTA to launch a US$15 billion lawsuit in 2016 after President Barack Obama cancelled the project.
Médias24 | 21-Jan-2021
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Reuters | 19-Jan-2021
Alberta believes there was a “very solid” legal basis to seek damages under international free trade agreements if the pipeline is effectively killed, said Alberta Premier

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