ISDS Cases

This page is a collection of known cases filed under the Investor-State Dispute Settlement provisions in various bilateral or multilateral trade agreements. New cases will be added and existing cases updated from time to time.

Those who have just dialed in are encouraged to get caught up on the subject starting with these articles:

  • Part 1 of the ISDS series provides some history and alarming stats and touches on the new trade treaties these provisions are infiltrating.
  • Part 2 of the series outlines the key problems with ISDS and a list of real life lawsuits.
  • Part 3 of the series describes what you can do to stop the spread of ISDS.
  • The ISDS landing page gives you an executive summary, a list of featured articles and the latest and greatest news on the subject. Recommended for those who want a 5-minute brain-dump. Visit this page also to keep abreast of all related events.

The table below is sortable by clicking on the table headings.

TitleCountryCompany$$ claimedOutcome
Eli Lilly sues Canada over invalidation of patentCanadaEli Lilly (US)481 millionpending
Railroad Development Corporation sues Guatemala over disputed railroad contractGuatemalaRailroad Development Corporation (US)45 millionpending
Renco Uses U.S.-Peru FTA to Evade Justice for La Oroya PollutionPeruRenco (US)800 millionpending
Occidental sues Ecuador over termination of oil concessionEcuadorOccidental (US)2.4 billioncompany won
Meyers sues Canada for closing its border trade in toxic PCB.CanadaMeyers (US)6 million, law repealedcompany won
Metalclad sues Mexico over ecological preserveMexicoMetalclad (US)15.6 millioncompany won
Mesa Power Group sues Ontario for preferences over local green power generatorsCanadaMesa Power Group (US)746 millionpending
Dow Chemical sues Quebec over ban of lawn pesticides containing toxic 2,4-DCanadaDow Chemical (US)settled, no payout
Ethyl Corp challenges Canada over import ban of neurotoxin gasoline additiveCanadaEthyl Corp (US)13 million, ban repealedcompany won
Mobile strikes down Newfoundland requirement for local R&DCanadaMobile Corp (US)17 millioncompany won
AbitibiBowater sues Newfoundland for taking back timber and water rights after company closes last millCanadaAbitibiBowater (US)130 millioncompany won
St. Marys sues Ontario for stopping a quarry over resident groundwater concernsCanadaSt. Marys (Brazil)15 millionsettled, government paid 15 million
Vattenfall sues Germany for premature phaseout of nuclear plantsGermanyVattenfall (Sweden)4.6 billionpending
Gabriel Resources sues Romania for failing to issue gold mine permitRomaniaGabriel Resources (Canada)4 billionpending
Bilcon sues Nova Scotia over disapproval of quarry terminal CanadaBilcon (US)300 millioncompany won, under appeal
Philip Morris sues Australia and Uruguay over anti-tobacco legislationAustralia, UruguayPhilip Morris (US)25 million for UruguayAustralia won, Uruguay pending
TransCanada sues US over cancellation of Keystone PipelineUSATransCanada Pipelines15 billionpending
Mexico wins WTO ruling on Dolphin-Safe Tuna LabelingUSAMexicoMexico won final decision
Michigan billionaire sues Canada over new second bridge to OntarioCanadaWindor-Detroit bridge (US)3.5 billionpending
Lone Pine Resources sues over Quebec moratorium on frackingCanadaLone Pine Resources (Canada)250 millionpending
Windstream Engery sues Ontario over cancellation of wind farm projectCanadaWindstream Energy (US)568 millionpending
US halts India's huge renewable energy sector expansion planIndiaUSUS won
Pacific Rim sues El Salvador over gold mineEl SalvadorPacific Rim Mining Corp. (Canada)315 millionpending
Veolia sues Egypt over minimum wage increaseEgyptVeolia Propreté (France)110 millionpending
Resolute Forest/AbitibiBowater sues Nova Scotia for helping restart local paper millCanadaResolute Forest/AbitibiBowater (US)97 millionpending
Newcrest Mining used arbitration threat to upend Indonesian environmental lawIndonesiaNewcrest Mining (Australia)potentially 22.8 billionIndonesia backed off

Case 1: Eli Lilly sues Canada over patent invalidation

Outcome: $481 million, case pending

After determining that major pharmaceutical company Eli Lilly had presented insufficient evidence to show the benefits of its attention deficit hyperactivity disorder (ADHD) drug called Strattera, the Canadian courts invalidated the company’s monopoly patent rights for the drug. In Nov 2023, Eli Lilly initiated formal proceedings under NAFTA to challenge Canada’s standards for granting drug patents, claiming that the invalidations of a patent violated three special investor privileges granted by the agreement, and demands $481 million in compensation.

This case marks the first attempt by a patent-holding big pharma to use ISDS as a tool to push for greater monopoly patent protections, which increase the cost of medicines for consumers and governments.

Details:

 

Case 2: Railroad Development Corporation sues Guatemala over disputed railroad contract

Outcome: RDC won, $18 million

After concluding that US based firm RDC did not comply with local law, Guatemala initiated a legal process to consider revoking a disputed railroad contract with the company. While defending itself through the country’s legal system, RDC launched a Central America Free Trade Agreement (CAFTA) claim against the government.

The tribunal not only allowed the ISDS claim to move forward despite the unresolved domestic process, but opined that investors should be allowed to access extrajudicial investor-state proceedings before the conclusion of domestic legal processes.

The outcome: Guatemala lost the case and was ordered to pay $18 million to RDC for initiating a domestic legal challenge.

Details: see case

Case 3: Renco uses U.S.-Peru FTA to evade justice for La Oroya pollution

Outcome: $800 million, case pending

After having already granted two deadline extensions to US based Renco Group to comply with its contractual committment to remediate envionmental and health problems caused by its toxic metal smelting operation, Peru denied a request from the corporation for a third extension and ordered the plant closed pending compliance.

Renco Group launched a $800 million ISDS case against the country under the US-Peru FTA for not granting it a third extension. Renco’s tactic is to use ISDS not only to evade justice in Peru, but also in the US, where it has long sought to indefinitely delay Missouri based lawsuits seeking compensation for the Peruvian children victims.

Renco’s problems with lead pollution started, ironically, in the US long before Peru. In 2002, the US Department of Health and Human Services found 28% of the children living in the vicinity of the company’s smelter and 45% of the children living clsoest to the facility, had high blood lead levels, and declared the site to be “an urgent public health hazard”. The company settled a lawsuit in 2010 filed by the EPA and the State of Missouri alleging 48 counts of violations, and agreed to pay $65 million for toxic lead pollution cleanup and $7 million penalty for breaking at least nine environmental laws.

Fearing its history of violations in the State would diminish its chance of success in the Missouri based lawsuit against it on behalf of the Peruvian children, the corporation has attempted three times, unsuccessfully, to move the case to a federal court where it would not have to face a Missouri jury.

One week after starting the investor-state case against Peru in 2011, the company moved for a fourth time to have the case moved to a federal court. This time, the judge agreed to move the case, citing Renco’s new FTA case as cause for change.

Details:

 

Case 4: Occidental sues Ecuador over termination of oil concession

Outcome: $2.4 billion

In 2012, the state-investor tribunal under the US-Ecuador Bilateral Investment Treaty ruled against Ecuador in a case involving the country’s termination of an oil concession after Occidental’s sale to another firm of 40% of its production rights without government approval, despite a provision in the concession contract stating that sale of Occidental’s production rights without government pre-approval would terminate the contract.

The two out of the three tribunal attorneys used reasoning that the third tribunalist called “so egregious in legal terms and so full of contradictions, that I could not but express my dissent”. The panel handed Ecuador a total penalty of at least $2.4 billion which included backdated compound interest, post-award interest and half of the tribunal costs.

This is the amount that Ecuador spends on health care each year for almost half of its population of 14 million. The sum amounts to 16% of the country’s external debt, or 11% of all goods exported annually. This case was the largest investor-state award handed out by a tribunal at the time and intensified sovereigns’ growing concerns about the investor-state dispute resolution system.

Details: case details

Case 5: Meyers sues Canada for closing its border trade in toxic PCB.

Outcome: company won, $6 million, law repealed + apology

When Canada closed its border to trade in toxic PCBs in 1998, a NAFTA panel ordered the Canadian government to pay US firm S.D. Meyers over $6 million plus interest and compensation for their lost business opportunities. The government repealed the ban, issued an apology and paid to settlement.

Details: case details

 

Case 6: Metalclad sues Mexico over ecological preserve

Outcome: $15.6 million awarded

A Mexican municipal government’s denial of a construction permit for the building of a toxic waste facility and the governor’s later declaration of an ecological preserve on the site were ruled to be NAFTA-illegal expropriations by a NAFTA tribunal. The Mexican government was ultimately ordered to pay California-based Metalclad company $15.6 million in compensation – a large amount relative to Mexico’s environmental protection budget.

Details: case details

 

Case 7: Mesa Power Group sues Ontario for preferences over local green power generators

Outcome: $746 million, case pending

Mesa Power Group, a U.S.-based corporation owned by Texas oil magnate T. Boone Pickens, filed a $746 million suit in 2011 to challenge a green jobs program of the government of Ontario. The provincial government’s green jobs program incentivizes clean energy production by paying preferential rates to solar and wind power generators that source their equipment locally. Mesa Power Group claimed that the successful program had prohibitive rules, taking particular issue with the buy local stipulations. The corporation alleged that such requirements violate its NAFTA-enshrined rights to most favored nation treatment, national treatment, and fair and equitable treatment.

Details: case details

Case 8: Dow Chemical sues Quebec over ban of lawn pesticides containing toxic 2,4-D

Outcome: settled with no payout

U.S. Dow Chemical Company, filed a NAFTA Chapter 11 claim for losses it alleged were caused by a Quebec provincial ban on the sale and certain uses of lawn pesticides containing the active ingredient 2,4-D. Quebec and other provinces banned the ingredient as an environmental precaution, and responses to public comments suggested about 90% popular support for the pesticide bans.

After five other provinces followed Quebec’s lead and banned the pesticide, Dow decided to settle with Canada in a deal that left the bans intact and required no taxpayer compensation to the corporation. However, the settlement required Quebec to state, “products containing 2,4-D do not pose an unacceptable risk to human health or the environment provided that the instructions on their label are followed.” Dow portrayed the statement as acknowledgement that the contested pesticides were safe.

Details: case details

Case 9: Ethyl Corp challenges Canada over import ban of neurotoxic gasoline additive

Outcome: $13 million, ban repealed

In 1997 the US chemical company challenged a Canada-wide ban on import and trade of the gasoline additive MMT, a suspected neurotoxin also banned by US law in reformulated gasoline. Following a preliminary judgment against Canada, the government repealed the ban, issued an apology and paid a $13 million out-of-court settlement.

 

Case 10: Mobil strikes down Newfoundland requirement for local R&D

Outcome: 17.3 million awarded

Having already lost its case in Canadian courts, oil giant Exxon Mobil filed a suit under NAFTA against Canada’s guideline requiring energy companies to invest in research and development in Newfoundland and Labrador. Ottawa has been ordered to pay $17.3 million, after a tribunal ruling in favor of the investors.

Details: ExxonMobil’s NAFTA win over oil R&D called ‘corporate bullying’

 

Case 11: AbitibiBowater sues Newfoundland for taking back timber and water rights after company closes last mill

Outcome: $130 million award

Although AbitibiBowater was to be compensated with what the Province of Newfoundland and Labrador deemed as fair price after the pulp and paper company closed its last mill in the province in 2008 and the provincial government enacted legislation to return its timber and water rights to the Crown and expropriate some of its lands and assets associated with water and hydroelectric rights, the firm launched a lawsuit under NAFTA. The suit was settled out of court by the Harper government in 2011 in which the provincial government paid $130 million to the firm, the largest NAFTA-related settlement to date.

Details: $130 million NAFTA payout sets troubling precedent

 

Case 12: St. Marys sues Ontario for stopping a quarry over resident groundwater concerns

Outcome: settled for $15 million

In 2011, the provincial government of Ontario issued a zoning order preventing a site from turning into a quarry near Hamilton after concerns over the groundwater from residents nearby grew. The Canadian subsidiary of St. Marys took the provincial government to NATFA court seeking $275 million in damage claiming unfair discrimination. The parties settled and the company withdrew its claim after receiving $15 million from the government.

Details:

 

Case 13: Vattenfall sues Germany for premature phaseout of nuclear plants

Outcome: $4.6 billion lawsuit filed

After a decision to shut down some old reactors and speed up efforts to phase out nuclear energy in the wake of the 2011 nuclear accident in Japan, Swedish nuclear operator Vattnfall filed a claimed against Germany for past and future losses to the tune of $4.6 billion.  This came after the same company successfully used another ISDS case to push Germany to roll back environmental requirements for a coal-fired power plant it owned.

Details: Vattenfall seeks recompense for German nuclear phaseout

Case 14: Gabriel Resources sues Romania for failing to issue gold mine permit

Outcome: $4 billion lawsuit launched

The saga of this latest case dates back to 1997 when the Canadian mining corporation intended to develop Europe’s largest gold and silver mine with a plan involving the resettlement of 2,000 inhabitants and the levelling of two pretty valleys. The plan ran into formidable local opposition, which witnessed massive protests of 30,000 people over several Sundays.

On the eve of an parliament vote on an exclusive law designed to permit the mine in early 2015, Gabriel’s CEO threatened with a $4 billion ISDS claim if the law did not passed. The threat backfired and drew even more demonstrations from all over Romania. Faced with massive protests, the parliament was unable to pass the law.

Gabriel, which has developed or operated exactly zero mine over 17 years, filed a ISDS claim against the country as a result. As we speak, the company is busy cherry picking the best jurisdiction whose investment protection agreement would give it the most advantage.

Details:

 

Case 15: Bilcon sues Nova Scotia over disapproval of quarry terminal

Outcome: Canada ruled against $300 million claim

In the face of significant community opposition and subsequent to the recommendations of a joint federal-provincial environmental review panel, an application for a basalt quarry and marine terminal development project in Digby, Nova Scotia by Delaware registered concrete company Bilcon was rejected due to environmental concerns.

The company filed a $300 million lawsuit under NAFTA claiming that it has been unfairly treated. In March 2015 a two-person majority panel ruled in favor of the company. A dissenting member of the panel warned that the ruling represents a “significant intrusion” into domestic jurisdiction and will “create a chill” among environmental review panels that will be reluctant to rule against projects that would cause undue harm to the environment or human health.

The federal government is appealing the ruling.

Details:

Case 16: Philip Morris sues Australia and Uruguay over anti-tobacco legislation

Outcome: $25 million, decision pending for Uruguay, Australia won

After enacting plain packaging policy to further curb cigarette smoking, the government of Australia found itself in a lawsuit from Philip Morris. By shifting its headquarters to Hong Kong, the tobacco giant uses the investor-state dispute settlement provisions of a bilateral treaty between the two jurisdictions to sue the government, claiming that plain packaging measure constitutes an expropriation of its Australian investments in breach of the Hong Kong Agreement. The case is expected to cost Australia $50 million defending itself in a secretive international tribunal in Singapore. The tobacco company lost the case in a 2015 ruling.

If $50 million sounds like hardship to even Australia, the case for the small South American country of Uruguay is much more dire. For enacting to increase the size of the health warnings on cigarette packs and clamping down on tobacco companies’ use of sub-brands like Malboro Red to falsely promote theirs as safe products, the country, whose GDP of $53 billion, got the wrath of the same tobacco company (annual revenue $80 billion) which sued under the terms of a bilateral trade agreement between Uruguay and Switzerland where it recently moved from the US. Years since it started in 2009 and millions of litigation costs later, the case is still in the hands of ISDS tribunals.

Details:

 

Case 17: TransCanada sues US over cancellation of Keystone Pipeline

Outcome: $15 billion lawsuit  launched

Two months after President Obama rejected TransCanada’s controversial plan to build the Keystone XL pipeline, Canadian oil company TransCanada Pipelines filed a $15 billion ISDS challenge, claiming that the Obama’s administration’s decision to cancel the Keystone pipeline was “arbitrary and unjustified” —a violation of the language in Chapter 11 of NAFTA that specifies that all domestic laws and regulations in the U.S., Canada, and Mexico meet certain thresholds of “fairness.”

Details:

 

Case 18: Mexico wins WTO ruling on Dolphin-Safe Tuna Labeling

Outcome: Mexico won final decision

Introduced in 1972, the Marine Mammal Protection Act bans the import into the US yellow-fin tuna caught with netting that also scooped up dolphins, which often swim in the eastern Pacific Ocean above yellow-fin schools. Other nations with more lax fishing standards led by Mexico challenging the law in 1990 with the WTO resulted in the US weakening the law by replacing the import ban with a voluntary labeling policy. Not satisfied with the relaxation, Mexico continued to challenge on behalf of its fishing industry, and won a final decision in 2015 when the WTO ruled that the law discriminates against tuna caught in Mexico, relative to other countries. Informing consumers of the fishing practices used to catch their tuna, the WTO concluded, represented a “technical barrier to trade.”. The US must now conform its law to the WTO ruling or face Mexican Mexican retaliation against U.S. imports.

The same language that enabled the WTO to rule for Mexico and against U.S. sovereign law is replicated in the Trans-Pacific Partnership, according to the Sierra Club.

Details: WTO Ruling on Dolphin-Safe Tuna Labeling Illustrates Supremacy of Trade Agreements

 

Case 19: Michigan billionaire sues Canada over new second bridge to Ontario

Outcome: $3.5 billion lawsuit filed

Michigan billionaire and owner of the Detroit-Windsor bridge Matty Moroun filed a $3.5 billion claim in damages under NAFTA in 2015 over Canada’s plan to build a new second bridge connecting Windsor and Detroit, alleging that the country’s handling of the pre-construction phase of the new bridge has violated his firm’s right under NAFTA provisions to be treated no differently than a Canadian company.

Details: Canada being sued for billions under NAFTA investor protections

 

Case 20: Lone Pine Resources sues Quebec over moratorium on fracking

Outcome: $250 million lawsuit filed

When Quebec passed a moratorium in 2012 on hydaulic fracturing (fracking) in order to further study the process’s potential impact on ground water, Lone Pine Resources Inc., a Canadian company based in Calgary but incorporated in Delaware, uses its mailbox address in the US to launch a $250 million lawsuit under NAFTA against Canada over the province’s decision to cancel its natural gas exploration permit for deposits beneath the St. Lawrence River, claiming it has lost millions because of the province’s “arbitrary, capricious and illegal decision”.

Details: Ottawa sued over Quebec fracking ban

 

Case 21: Windstream Energy sues Ontario over cancellation of wind farm project

Outcome: $568 million lawsuit filed

After the province of Ontario placed a moratorium on offshore wind farms and canceled dozens of projects, US-based Windstream Energy filed a lawsuit against the province in 2012 seeking $568 million in damages over the cancellation of the company’s proposed wind farm in the St. Lawrence River near Kingston.

Details: Canada Sued For $568 Million Under NAFTA Over A Wind Farm That Ontario Cancelled

 

Case 22: US halts India’s huge renewable energy sector expansion plan

Outcome: US won

With the ink on the Paris agreement on tackling climate change barely dry, India’s ambitious plan for a huge expansion of its renewable energy sector comes to an abrupt halt, after the WTO handed the US a clear victory over its challenge that the plan seeks to provide work for Indian people.

The ruling concludes that India’s Solar Mission, which aims to generate 100 gigawatts of solar power annually by 2022 and create local jobs, violates trade policies because it includes a domestic content clause requiring part of the solar cells to be produced nationally.

All expansive trade agreements under negotiation, including TTIP, CETA and TTP contain similar if not even stronger provisions undermining domestic governments’ capacity to support local renewable energy and clean technology transfer and empowering fossil fuel companies to attack climate protection in secret courts.

Details: Trade Rules Trump Climate Action: U.S. Blocks India’s Ambitious Solar Plans

 

Case 23: Pacific Rim sues El Salvador over gold mine

Outcome: $315 million lawsuit pending

As the smallest and most densely populated country in Latin America, with already stressed water supplies, Salvadorans were alarmed Pacific Rim Mining Corp.’s El Dorado gold project which would consume 30,000 liters of water a day, drawn from the same sources that currently provide the water deprived region with water only once a week. Locals were also concerned that the cyanide used for the gold extraction process would contaminate the local groundwater and soil.

In the wake of the country’s decision not to proceed with the mine in 2008, the Canadian company filed a $77 million US-Central America Free Trade Agreement. After ruling by the World Bank that CAFTA could not be used to pursue the challenge, the lawsuit morphed into a $315 million lawsuit under the World Bank’s International Center for Settlement of Investment Disputes in 2013.

Details:

 

Case 24: Veolia sues Egypt over minimum wage increase

Outcome: $110 million lawsuit pending

Veolia Propreté, a French multinational corporation, launched an investor-state claim against Egypt in
2012, demanding at least $110 million under the France-Egypt BIT over disputes relating to a 15-year
contract for waste management in the city of Alexandria. The corporation claims that having to
comply with changes to Egyptian laws of general application violated the government’s contractual
commitments to keep payments to Veolia aligned with cost increases. Among its claims, Veolia argues that changes to Egypt’s labor laws – including increases to minimum wages – have negatively affected the company’s investment, and that Egypt has violated its contract and the BIT’s investor protections by not helping the corporation offset such costs. An investor-state tribunal was established in 2013 and the case is pending.

Details: Case Studies: Investor-State Attacks on Public Interest Policies

Case 25: Resolute Forest/AbitibiBowater sues Nova Scotia for helping restart local paper mill

Outcome: $97 million case just launched

Resolute Forest, formerly known as AbitibiBowater and the same company which less than five years ago sued the province of Newfoundland (see Case 11 above) for taking away its water and timber rights after the company closed its last mill in the province and got away with $130 million from Canada, is at it again.

The claim this time, $97.1 million in damage and filed against the province of Nova Scotia in 2015, alleges unfair advantage given to a domestic company when the provincial government invested $125 million (to be repaid within seven years) to help restart a paper mill in Port Hawkesbury which supported 1400 jobs and whose revenue represented 2.5 per cent of the province’s GDP.

Details: Resolute Forest launches NAFTA challenge over Nova Scotia paper mill

 

Case 26: Newcrest Mining used arbitration threat to upend Indonesian environmental law

Outcome: Indonesia backed off on enforcing law banning environmentally destructive form of mining in protected forest areas

Under the country’s prior military dictatorship, Australian Newcrest Mining plus 12 other mining companies were granted ‘exemptions’ from Indonesia’s law banning environmentally destructive form of mining in protected forest areas. When the newly democratized country tried to enforce the rule in the early 2000’s, the companies threatened to sue under ISDS.

Officials did the math and calculated that if the companies sued, the state stood to lose up to 22.7 billion, about half of its entire 2003 budget.

The mining ministry’s chief lawyer: the threat of “arbitration is the only reason” the government caved in to the companies’ demands.

Details: Revealed: Australian miner used arbitration threat to upend Indonesian environmental law

 

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Image credit: euranetplus-inside.eu

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