Settlement of Investment Disputes under the Energy Charter Treaty

Description

Treaty-based investment arbitration is becoming increasingly important in international commerce, with the vast majority of such investment cases being filed within the past three years. The issues associated with investment arbitration are therefore of growing interest not only to governments but also to the business and legal communities. Within this overall picture, the Energy Charter Treaty occupies a singular position, providing a unique multilateral investment protection regime for the energy sector. This book seeks to provide practical guidance to the complex operation of the Treaty. Half-title Series-title Title Copyright Dedication Contents Foreword Preface Table of cases 1 Introduction: International treaty arbitration and the Energy Charter Treaty 1. Investment treaty arbitration: origins and characteristics 2. The Energy Charter Treaty: origins and negotiating history 3. Main provisions of the Energy Charter Treaty and related instruments (a) Trade (b) Investment (c) Transit (d) Environmental protection and energy efficiency (e) Settlement of disputes (f) Understandings and Declarations 4. Institutional aspects of the Energy Charter Treaty and the Energy Charter process (a) The Charter Conference (b) The Energy Charter Secretariat (c) The Energy Charter process review 2 The applicable law 1. Introduction 2. Interpreting the Energy Charter Treaty (a) Article 31 of the VCLT (b) Article 32 of the VCLT (c) Language issues (d) Other treaties and general international law (e) Decisions of other investment arbitration tribunals 3. The role of national law 3 Availability of dispute settlement under Article 26 1. Introduction – jurisdiction and admissibility 2. Jurisdiction (a) Procedure for resolving issues of jurisdiction (b) The five conditions for establishing jurisdiction (i) There must be a dispute concerning an alleged breach of an obligation under Part III of the Treaty by a Contracting Party – Condition (1) (ii) The dispute must relate to an Investment – Condition (2) (iii) The Investment must be in the Area of the Contracting Party – Condition (3) (iv) The claimant must be an Investor of a Contracting Party – Condition (4) (v) The events with which the claim is concerned must have occurred ata date such as to give the tribunal jurisdiction – Condition (5) 3. Provisional application 4. Article 17 – denial of advantages (a) Jurisdiction or admissibility (b) Burden of proof (c) How the advantages of Part III are denied 5. Misconduct on the part of the Investor 4 European Union law and the Energy Charter Treaty 1. Introduction 2. Investment disputes within the EU (a) Jurisdiction (b) Admissibility (c) Merits 3. Investment disputes between member states and Investors of non-member states 4. Dispute settlement under Article 26 and the European Union 5 Substantive law 1. Introduction 2. The scope of Part III of the ECT: investment promotion versus investment protection (a) Promotion of investment (b) Protection of investments (i) Fair and equitable treatment (ii) Most constant protection and security (iii) No unreasonable or discriminatory measures (iv) Treatment less favourable than that required by international law, including treaty obligations (v) Observance of obligations – the 'umbrella’ clause (vi) National and most-favoured nation treatment (vii) Effective means for the assertion of claims and the enforcement of rights (viii) Other obligations 6 Procedure 1. Introduction 2. Amicable settlement 3. No requirement of exhaustion of remedies (a) Exceptions to the right to move directly to proceedings under Article 26(2) (i) Exclusive jurisdiction clauses (ii) Acts of the local courts as violations of Part III of the Treaty 4. The claimants choice between options under Article 26(2) (a) Article 26(2)(a): 'to the courts or administrative tribunals of the Contracting Party party to the dispute’ (b) Article 26(2)(b): 'in accordance with any applicable, previously agreed dispute resolution procedure’ (c) Article 26(2)(c): 'in accordance with the following paragraphs of this Article’: international arbitration under the ECT itself 5. Exceptions to host states’ consent (a) Article 26(3)(b): the fork-in-the-road clause (b) Article 26(3)(c) (c) Contracting out of the right to proceed to international arbitration under Article 26(3)? 6. Factors determining the claimants choice of international arbitration forum (a) Available forums (b) Choice among available arbitral forums (i) Challenges to awards (ii) Challenges to enforcement 7. Powers of a tribunal constituted pursuant to Article 26 7 Contracting Parties’ international responsibility for breaches of Part III of the ECT 1. Introduction 2. State responsibility under the ECT (a) Responsibility of a Contracting Party for acts of all organs of government: Article 23 (b) State and privileged enterprises: Article 22 3. International responsibility of international organisations under the ECT 8 Taxation 1. Introduction 2. Taxation and most-favoured nation and national treatment (Article 10(2) and (7)) 3. Taxation and the prohibition on expropriation (Article 13) 4. Transfers related to investments Appendix A: Selected provisions of the Energy Charter Treaty Final Act of the European Energy Charter Conference as Opened for Signature in Lisbon on 17 December 1994 Understandings Declarations The Energy Charter Treaty (Annex 1 To the Final Act of the European Energy Charter Conference) Preamble Part I: Definitions and purpose Article 1 Definitions Article 2 Purpose of the Treaty Part II: Commerce Article 5 Trade-related investment measures Part III: Investment promotion and protection Article 10 Promotion, Protection and Treatment of Investments Article 11 Key Personnel Article 12 Compensation for losses Article 13 Expropriation Article 14 Transfers related to investments Article 15 Subrogation Article 16 Relation to other agreements Article 17 Non-application of Part III in certain circumstances Part IV: Miscellaneous Provisions Article 18 Sovereignty over energy resources Article 21 Taxation Article 22 Privileged enterprises Article 23 Observance by sub-national authorities Article 24 Exceptions Article 25 Economic integration agreements Part V: Dispute settlement Article 26 Settlement of disputes between an investor and a contracting party Part VIII: Final provisions Article 45 Provisional application Annexes To the Energy Charter Treaty 1. Annex Em Energy Material and Products (In Accordance With Article 1(4)) Nuclear energy Coal, Natural Gas, Petroleum and Petroleum Products, Electrical Energy Other Energy 2. Annex Ni Non-Applicable Energy Materials and Products for Definitions of ‘Economic Activity In the Energy Sector’ (In Accordance With Article 1(5)) Annex id list of contracting parties not allowing an investor to resubmit the same dispute to international arbitration at a later stage under article 26 (in accordance with article 26 (3) (b)(i)) Decisions with respect to the energy charter treaty (annex 2 to the final act of the european energy charter conference) Appendix B: Signatories to the Energy Charter Treaty Observers to the Energy Charter Conference International Organisations with Observer Status Bibliography Books and Reports Chapters in edited books Articles and conference papers Index