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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)

Case note: How Chevron v. Ecuador is pushing the boundaries of arbitral authority
IISD | 13-Apr-2012
The arbitral tribunal in Chevron v. Ecuador has taken a series of steps in recent months suggesting that it has a broad view of its authority.
Ecuador , energy , environment , investor-state disputes | ISDS , US
’We can’t even manage to send a lemon to the US,’ CFK
| 1-Apr-2012
President Cristina Fernández de Kirchner questioned US president Barack Obama’s recent decision to suspend trade benefits for Argentina, while complaining that “we can’t even manage to get one of our lemons to enter the US market.”
Argentina , ICSID , investment | BITs , investor-state disputes | ISDS , US
US suspends Argentina from trade preference scheme
ICTSD | 29-Mar-2012
Trade frictions are on the rise between Washington and Buenos Aires, after US President Barack Obama announced that the US would be suspending Argentina from its Generalised System of Preferences programme for failure to pay arbitration awards in two disputes involving US investors.
Argentina , investor-state disputes | ISDS , US
Obama says to suspend trade benefits for Argentina
| 26-Mar-2012
U.S. President Barack Obama said on Monday he was suspending trade benefits for Argentina because of the South American country’s failure to pay more than $300 million in compensation awards in two disputes involving American investors.
Argentina , ICSID , investor-state disputes | ISDS , US , water
US eyes suspending trade benefits for Argentina
| 21-Mar-2012
The United States could soon suspend trade benefits for Argentina because of that country’s failure to pay awards in two long-running investment disputes with U.S. companies, a U.S. trade official said on Monday.
Argentina , ICSID , investor-state disputes | ISDS , US
Chevron’s secret arbitration violates human rights
Amazon Defense Council | 17-Feb-2012
The Andean Commission of Jurists and five prestigious international law experts from around the world have joined a growing chorus of criticism targeting Chevron’s attempt to use a secret investor arbitration as part of its campaign to evade an $18 billion environmental judgment in Ecuador, according to letters released today.
Andean countries , Ecuador , investor-state disputes | ISDS , US
Facing devastating setbacks, Chevron now seeks taxpayer bailout from $18 billion Ecuador judgment
Amazon Defense Coalition | 1-Feb-2012
On February 11, Chevron will ask a panel of three private lawyers named as "arbitrators" under the BIT to nullify the entire nine-year Ecuadorian court process that recently found the company liable for $18 billion in clean-up costs.
Ecuador , environment , investor-state disputes | ISDS , US
Unearthed documents illustrate pitfalls of ISD clause
The Hankyoreh | 3-Jan-2012
The experiences of former judge Abner Mikva, an arbitrator in a NAFTA dispute, demonstrate how he was pressured to favor the interests of the American establishment
investor-state disputes | ISDS , Korea , US
Philip Morris Limited files high court challenge against the Australian government over plain packaging
Philip Morris Ltd | 20-Dec-2011
"We believe plain packaging violates the Australian Constitution because the Government is seeking to acquire our property without paying compensation," the company states
Australia , investor-state disputes | ISDS , US
Labor, environmental activists to protest World Bank’s CAFTA tribunal
AFL-CIO | 15-Dec-2011
Tomorrow, the AFL-CIO will join the Institute for Policy Studies (IPS) and activists from a range of labor and environmental groups to converge on the World Bank headquarters in Washington, D.C., for a noon protest in opposition to a CAFTA case being brought against the Salvadoran government by Pacific Rim.
actions | resistance , CAFTA , Canada , El Salvador , investor-state disputes | ISDS , US