Investor state dispute settlement

Historical development

Under customary international law a state can vindicate injury caused to its nation by the host state by exercising diplomatic protection, which may include retorsion and/or reprisals. In addition to diplomatic protection and to avoid having to resort to coercive means, states can and do establish ad hoc commissions and arbitral tribunals to adjudicate claims involving treatment of foreign nationals and their property by the Host State ("state-state-dispute-settlement", SSDS). Notable examples of this practice are the Jay Treaty commissions, the Iran–United States Claims Tribunal and the American-Mexican Claims Commission. However, these treaties were limited to the treatment of foreign investors during a past period of time whereas modern ISDS allows investors claims against states in general and on a prospective basis.

Modern practice

Currently, the legal protection of Foreign Direct Investment under public international law is guaranteed by a network of more than 2750 bilateral investment treaties (BITs), Multilateral Investment Treaties, most notably the Energy Charter Treaty and number of Free Trade Agreements such as NAFTA containing a chapter on investment protection. Most of these treaties were signed by states in the late 1980s and early 1990s, before the current explosion of investor claims under the treaties began in the late 1990s.

The majority of these legal instruments provides foreign investors with a substantive legal protection (including the right to "fair and equitable treatment", "full protection and security", "free transfer of means" and the right not to be directly or indirectly expropriated without full compensation) and access to ISDS for redress against Host States for breaches of such protection. Some of these standards are framed in vague terms, given extensive discretion to arbitrators in their interpretation and application. The overall number of known cases reached over 500 in 2012. Of these, 244 were concluded, of which approximately 42% were decided in favour of the Host State and approximately 31% in favour of the investor. Approximately 27% of the cases were settled out of court.

Notably, only foreign investors can sue states under investment treaties, because states are the parties to the treaty, and only states can be held liable to pay damages for breach of the treaty. States have no corresponding right to bring an original claim against a foreign investor under such treaties, again because investors are not parties to the treaty and therefore cannot be in breach of it. Thus, a decision in favour of the State means that the state has not been ordered to pay compensation, not that it has received any compensation from the investor, although costs can be awarded against the investor. A state cannot "win" in ISDS in the manner of a foreign investor - a state which wishes to sue a foreign investor does so through its own domestic courts, without the need for a treaty.

NAFTA Chapter 11

A notable example of ISDS, which has been in existence for two decades now, is Chapter 11 of the North American Free Trade Agreement (NAFTA). NAFTA Chapter 11 allows investors of one NAFTA party (Canada, United States or Mexico) to bring claims directly against the government of another NAFTA party before an international arbitral tribunal. Because NAFTA Article 1121 waives the local remedies rule, investors are not required to exhaust local remedies before filing Chapter 11 claims. While this fact has been amply criticized in public, proponents of ISDS tend to point out that speedy dispute resolution through ISDS is critical in modern economic environments and would be defeated by adding several instances of local remedies. On the other hand, there is no other situation in international law where a private party can sue a state without showing that the state's domestic courts are not independent or reliable. The removal of the customary duty to exhaust local remedies, where they are reasonably available, is claimed to be a factor in the explosion of investment treaty claims since the late 1990s, although a more obvious explanation is the explosion in the number of bilateral free trade agreements since the breakdown of the multilateral WTO Doha round in the mid 2000s.

Investors may initiate an arbitration against the NAFTA Party under the Arbitration Rules of the United Nations Commission on International Trade Law ("UNCITRAL Rules") or under the Rules of the International Centre for Settlement of Investment Disputes ("ICSID Rules"). NAFTA Chapter 11 was the first instance of an ISDS provision receiving widespread public attention, especially in the United States in the wake of the Methanex case.

Debates and criticism

Much debate and criticism has arisen concerning the impact of ISDS on the capacity of governments to implement reforms and legislative and policy programs related to public health, environmental protection and human rights.

Opponents argue that investor state claims (or the threat of them) inhibit the capacity of domestic governments (the "policy space") to pass legislation addressing perfectly legitimate public concerns, such as health and environmental protection, labour rights or human rights. Proponents of ISDS argue that states and their governments are bound by public international law, which includes bilateral investment treaties and international investment agreements. Under this view, the "right to regulate" has not been "lost" by the states, but on the contrary has been consciously designed by states not to allow for breach of investor's protected rights. The accession to instruments of public international law guaranteeing such rights is an exercise of democratic constitutional power and binds the acceding state, even if its future government changes. In this perspective, they say, future governments who feel "undemocratically restricted" in their "policy space" had better remember that it is the act of a democratically elected former government that binds them. On the other hand, it may contradict principles of democratic accountability to allow one government to bind another for decades to come. Unlike the great majority of other treaties, investment treaties have very long minimum lifespans ranging up to 30 years.

Opponents also argue that arbitrations are sometimes carried out in secret by trade lawyers who do not enjoy the typical safeguards of judicial independence and procedural fairness, who earn income only if a case is brought and proceeds, and who are not accountable to the public or required to take into account broader constitutional and international law human rights norms. Proponents of ISDS point out that confidentiality is a standard feature of all arbitration and one that enables a constructive, de-politicized and fact-oriented atmosphere of dispute resolution. On the other hand, such traditional confidentiality is limited to disputes that affect the parties in question and not the broader public.

Also, most ICSID awards, although confidential, are de facto published by consent of the parties. However, many awards under other arbitration rules are not public and, in the case of investor-arbitration at the International Chamber of Commerce, there is a requirement for blanket confidentiality for all aspects of a case.

It is further pointed out that judges are not elected in most countries outside the US, so that "public accountability of judges" may not be considered a standard of public international law. In any event, they say, the qualification of ISDS arbitrators matches or exceeds the qualification of most court judges. In response, critics make the point that any judge, whether domestic or international, who is part of a legal system not shown to be systematically biased or unreliable, has a greater claim to independence than an arbitrator because they are insulated from conflicts of interest that arise when arbitrators work on the side as lawyers, and is assigned cases in an objective manner rather than by the discretion of a disputing party or an executive official. Arbitrators are appointed by both parties at dispute, so such conflicts of interest may arise on both sides.

Resistance from the EU side to the US proposal to include an ISDS clause in the draft Transatlantic Trade and Investment Partnership treaty was such as to cause this element to be abandoned in September 2015. In its place, the European Commission proposed an investment court system (ICS). Not long afterwards, ICS was declared illegal by the German Association of Magistrates, though the Commission dismissed the magistrates' judgement as based on a misunderstanding. For its part, the United States wants ISDS reinstated.

Transparency

While ISDS has traditionally been confidential as any other arbitration, the general trend in the last decade has been to allow for more openness and transparency. On the other hand, there is still widespread confidentiality in the system.

Under Art. 29 of the U.S. Model-BIT of 2004, all documents pertaining to ISDS have to be made public and amicus curiae briefs are allowed. However, no investment treaty allows other parties who have an interest in the dispute, other than the claimant investor and respondent government, to obtain standing in the adjudicative process.

Under the Trans-Pacific Strategic Economic Partnership, the tribunals shall, subject to the consent of the disputing parties, conduct hearings open to the public. The tribunal will make available to the public documents relating to the dispute such as the notice of intent, the notice of arbitration, pleadings, memorials, minutes or transcripts of the hearings of the tribunal, where available; orders, awards and decisions of the tribunal. In addition, third parties can and increasingly do participate in investor-state arbitration by submitting amicus curiae petitions.

The World Bank's International Centre for the Settlement of Investment Disputes (ICSID) is required by ICSID Administrative and Financial Regulation 22 to make public, information on the registration of all requests for arbitration and to indicate in due course the date and method of the termination of each proceeding. It also publishes the vast majority of awards with the consent of the parties. If the parties do not consent, ICSID publishes excerpts showing the tribunal's reasoning. The ICSID website has published awards for most completed arbitrations, and decisions in investor-state arbitrations outside of ICSID are also publicly available online.

On April 1, 2014, the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration entered into force. Article 3 foresees a general duty to publish all documents pertaining to an ISDS-procedure under UNCITRAL Rules, where the treaty establishing the ISDS-mechanism has been concluded after 1 April 2014 or where the parties so consent, subject to certain overwhelming confidentiality interests listed in Article 7. Original proposals to make all UNCITRAL arbitration under investment treaties public were not adopted after opposition by some states and by representatives of the arbitration industry who participated in the UNCITRAL working group negotiations as state representatives.

On 17 March 2015, the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration ('Mauritius Convention') was opened for signatures in Port Louis, Mauritius. The Mauritius Convention will render the UNCITRAL Rules on Transparency in Treaty-based Investor State Arbitration also applicable to disputes arising out of investment treaties that were concluded prior to 1 April 2014 if both parties to the investment treaty are also party to the Mauritius Convention. The Convention has not yet entered into force since the three required ratifications have not yet been submitted. 10 States have signed the Mauritius Convention so far.

Tribunals

Investment disputes can be initiated by corporations and natural persons and in almost all cases, investment tribunals are composed of three arbitrators. As in most arbitrations, one is appointed by the investor, one by the state, and the third is usually chosen by agreement between the parties or their appointed arbitrators or selected by the appointing authority, depending on the procedural rules applicable to the dispute. If the parties do not agree who to appoint, this power is assigned to executive officials usually at the World Bank, the International Bureau of the Permanent Court of Arbitration, or a private chamber of commerce.

Other individuals cannot initiate a claim against a state under an investment treaty. Also, no individual or state can initiate a claim against a foreign investor under an investment treaty. This has led to criticisms that investor-state arbitration is not balanced and that it favours the "haves" over the "have nots" by giving foreign investors, especially major companies, access to a special tribunal outside any court. While the arbitration process itself does not provide explicitly privileged access for larger investors over individuals or SMEs, the costs of ISDS, as in any court or arbitration system, tend to be off-putting for smaller claimants.

Cases lost by government

S.D. Myers v. Canada

Between 1995 and 1997 the Canadian government banned the export of toxic PCB waste, in order to comply with its obligations under the Basel Convention, of which the United States is not a party. Waste treatment company S.D. Myers then sued the Canadian government under NAFTA Chapter 11 for $20 million in damages. The claim was upheld by a NAFTA Tribunal in 2000.

Occidental v. Ecuador

In October 2012, an ICSID tribunal awarded a judgment of $1.8 billion for Occidental Petroleum against the government of Ecuador. Additionally, Ecuador had to pay $589 million in backdated compound interest and half of the costs of the tribunal, making its total penalty around $2.4 billion. The South American country annulled a contract with the oil firm on the grounds that it violated a clause that the company would not sell its rights to another firm without permission. The tribunal agreed the violation took place but judged that the annulment was not fair and equitable treatment to the company.

Ethyl Corporation v. Canada

In April 1997 the Canadian parliament banned the import and transport of MMT, a gasoline additive, over concerns that it poses a significant public health risk. Ethyl Corporation, the additive's manufacturer, sued the Canadian Government under NAFTA Chapter 11 for $251 million, to cover losses resulting from the "expropriation" of both its MMT production plant and its "good reputation". A similar challenge was launched by three Canadian provinces, under the Agreement on Internal Trade, and was upheld by a Canadian dispute settlement panel. Consequently, the Canadian government repealed the ban and paid Ethyl Corporation $15 million as compensation.

Dow AgroSciences v. Canada

On August 25, 2008, Dow AgroSciences LLC, a U.S. corporation, served a Notice of Intent to Submit a Claim to Arbitration under Chapter 11 of NAFTA, for losses allegedly caused by a Quebec ban on the sale and certain uses of lawn pesticides containing the active ingredient 2,4-D. The tribunal issued a consent award as the parties to the dispute reached a settlement.

Cases won by government

Apotex v. the United States

Under Chapter 11 of NAFTA, Apotex Inc., a Canadian pharmaceuticals corporation, has alleged that U.S. courts committed errors in interpreting federal law, and that such errors were in violation of NAFTA Article 1102 (national treatment) and Article 1105 (minimum standard of treatment under international law). Apotex also alleged that the challenged U.S. court decision in favor of the Pfizer drug company expropriated Apotex’s investments in generic versions of the antidepressant Zoloft under NAFTA Article 1110 as was manifestly unjust. Apotex relied on the doctrine that a manifestly unjust domestic legal decision breaches international law and can be viewed as a substantive denial of justice. Apotex has also brought a similar claim involving U.S. regulatory provisions concerning an abbreviated new drug development application for Pravastatin and patents allegedly held by Bristol Myers Squibb. Apotex has two claims involving different generic products. On June 14, 2013, the Tribunal issued an Award on Jurisdiction and Admissibility, dismissing all of the claims and ordering Apotex to pay the United States' legal fees and arbitral expenses.

Chemtura Corporation v. Canada

Chemtura Corporation, a United States agricultural pesticide products manufacturer, alleged that the Canadian government's Pest Management Regulatory Agency (PMRA) wrongfully terminated its pesticide business in lindane-based products, which are used on canola, rapeseed, mustard seed and cole crops to control flea beetle infestations, and on cereal crops to control wireworm. Chemtura alleged NAFTA violations of Article 1105 (on minimum standards of treatment) and Article 1110 (on expropriation). All claims were dismissed by the Tribunal, given that the measure did not amount to a substantial deprivation of the Claimant's investment and was taken legitimately and without bad faith.

Philip Morris v. Uruguay

The Philip Morris v. Uruguay case (Spanish: es:Caso Philip Morris contra Uruguay) started on February 19, 2010, when the multinational tobacco company Philip Morris International filed a complaint against Uruguay seeking $25 million in damages. The company complained that Uruguay's anti-smoking legislation devalued its cigarette trademarks and investments in the country and based its lawsuit on the bilateral investment treaty between Switzerland and Uruguay. The International Centre for Settlement of Investment Disputes (ICSID), a part of the World Bank decided it had jurisdiction on July 2, 2013, and three years later ruled in favor of Uruguay, ordering Philip Morris to pay Uruguay $7 million, in addition to all court costs.

Prospects for ISDS

After ISDS claims by investors sharply increased starting in the late 1990s, ISDS came under greater public attention and criticism. This was true for the NAFTA claims against the United States in the late 1990s, for Germany in the wake of the Vattenfall claims in the late 2000s and also for Australia in 2011, when confronted with the Philip Morris claim.

In 2011, the Australian government announced that it would discontinue the practice of seeking inclusion of investor state dispute settlement provisions in trade agreements with developing countries. It stated that it:

"...supports the principle of national treatment — that foreign and domestic businesses are treated equally under the law. However, the Government does not support provisions that would confer greater legal rights on foreign businesses than those available to domestic businesses. Nor will the Government support provisions that would constrain the ability of Australian governments to make laws on social, environmental and economic matters in circumstances where those laws do not discriminate between domestic and foreign businesses. The Government has not and will not accept provisions that limit its capacity to put health warnings or plain packaging requirements on tobacco products or its ability to continue the Pharmaceutical Benefits Scheme... In the past, Australian Governments have sought the inclusion of investor-state dispute resolution procedures in trade agreements with developing countries at the behest of Australian businesses. The Gillard Government will discontinue this practice. If Australian businesses are concerned about sovereign risk in Australian trading partner countries, they will need to make their own assessments about whether they want to commit to investing in those countries... Foreign businesses investing in Australia will be entitled to the same legal protections as domestic businesses but the Gillard Government will not confer greater rights on foreign businesses through investor-state dispute resolution provisions."

This statement is a reaction to Philip Morris' ISDS claim under UNCITRAL rules to challenge Australian tobacco Advertising Restrictions. In the two years since that statement, Australia has not terminated a single bilateral investment treaty allowing for ISDS. Even if it were to do so, most such treaties foresee post-termination-protection for many years after the termination has become effective. In any event, since the election of the conservative Coalition Government in 2013, the Government has entered into free trade agreements (such as the China-Australia Free Trade Agreement, Ch 9 section B) that include ISDS.

A more probable way ahead may be the preservation of investor protection under public international law, including ISDS, but with more concern for transparency and the balancing of economic and non-economic interests. As noted above, the European Commission proposed September 2015) an 'Investment Court System' to replace ISDS clauses (notably in the draft TTIP), with the scope for investor challenge much reduced and with 'highly skilled judges' rather than arbitrators used to determine cases.

In this vein, Karel De Gucht, the EU commissioner in charge of negotiating International Investment Agreements declared on 18 December 2014 that future agreements shall become more transparent, shall "fully enshrine democratic prerogatives" and "explicitly state that legitimate government public policy decisions – on issues such as the balance between public and private provision of healthcare or "the European ban on chicken carcasses washed with chlorine" – cannot be over-ridden". He announced to "crack down on companies using legal technicalities to build frivolous cases against governments", to "open up investment tribunals to public scrutiny – documents will be public and interested parties, including NGOs, will be able to make submissions". Also, he said, the EU "will eliminate any conflicts of interest – the arbitrators who decide on EU cases must be above suspicion". However, insisting equally on the advantages of such investment protection agreements, he states along that [they] "protect job-creating investment from discrimination and unfair treatment" and that "the task here is to find the right balance between preventing abuse and protecting investments".

Current controversies over ISDS appear driven by attempts to expand its scope to new countries and, especially, to relations between developed countries with mature court systems and democratic governments.

In 2014, several members of the United States House of Representatives expressed opposition to inclusion of ISDS in the proposed Transatlantic Trade and Investment Partnership (TTIP) between the United States and the European Union. In 2015, faced with opposition to ISDS in several European countries, the European Parliament adopted a resolution requiring any new dispute settlement scheme included in TTIP "must be replaced by a new public and transparent system of investment protection, in which private interests cannot undermine public policy and which is subject to public law". (The Commission's 2015 proposal in response is noted above).

South Africa has stated it will withdraw from treaties with ISDS clauses, and India is also considering such a position. Indonesia plans to let treaties with ISDS clauses lapse when they need renewal. Brazil has refused any treaty with ISDS clauses.