James Hosking Featured in “Commercial Dispute Resolution” Publication on ISDS and US Executive Actions

December 2025 — Chaffetz Lindsey’s James Hosking was featured in a recent Commercial Dispute Resolution article examining whether the second Trump administration’s sweeping use of executive orders could increase the possibility of  investor-state dispute settlement (ISDS) claims against the United States.

Hosking notes the United States “has never lost an ISDS case,” despite being party to a network of bilateral investment treaties and free-trade agreements containing investor-state dispute resolution provisions. But he identifies that recent executive actions, including in the energy, shipping and trade sectors, have attracted close attention from international investment advisors. While such regulatory shifts have given rise to claims in other jurisdictions, Hosking cautions that the prospect of an imminent wave of ISDS claims against the US appears remote, especially as many controversial measures remain the subject of ongoing domestic law challenges or remain yet to be fully implemented.

At the same time, Hosking underscores the importance of preparedness. He notes that the rollback of renewable energy incentives, for example, and other policy “flip-flops” warrant close monitoring, as similar changes elsewhere have served as the basis for investment treaty claims. He advises investors to focus first on contractual and domestic law protections, while remaining mindful of their public international law rights as a potential backstop.

“Right now, our clients are primarily trying to work within the new paradigm rather than looking at ISDS-type options,” Hosking observes, adding that many projects—particularly in the renewable energy sector—benefit from layered protections at the contractual, municipal, state and federal levels.

The full publication can be found here.