Investment Protection and the Energy Charter Treaty
Published in 2008
Book
Hardback
330 pages
978-1-933833-24-8 (ISBN)
Description
Investment Protection and the Energy Charter Treaty, edited by Graham Coop and Clarisse Ribeiro, General Counsel and Legal Counsel, respectively, of the Legal Affairs Unit of the Energy Charter Secretariat in Brussels, Belgium, is authored by the most prominent and leading experts on the Energy Charter Treaty ("ECT" or "Treaty"). The book, issuing from the 'Conference on Investment Protection and the Energy Charter Treaty' organized by the Energy Charter Secretariat, the Stockholm Chamber of Commerce, and the International Centre for the Settlement of International Disputes in May 2007, provides in-depth analysis of the most pressing issues arising under the ECT.
Investment Protection and the Energy Charter Treaty, contains in depth substantive analysis of the interpretation and application of provisions of the Energy Treaty Charter including access to dispute resolution mechanisms under Article 26 of the Treaty and the standards of treatment for investors under the Energy Charter Treaty, including the guarantee of most favored nation treatment, protection against unfair and inequitable treatment, unreasonable and discriminatory measures, direct and indirect expropriation, breaches of investment agreements, damages due to war and similar events, and unjustified restrictions on the transfer of funds, as well as protection against certain types of tax measures. The book examines issues such as the arbitrability of "pre-investment" disputes under the Treaty and whether public tender offers can qualify as "existing" investment rather than "pre-investment" activity and the applicability of the ECT between members of the European Community. The role of the ECT in the context of the European Union and Russia (examining the legal dimension of the oil and gas relationship between the EU and Russia) and provides a comparison of the Energy Charter Treaty and other investment Treaties (distinguishing the ECT approach to investment protection in the context of disputes submitted to arbitration under its dispute resolution provisions).
The purpose of this book is to continue to raise awareness about the Energy Charter Treaty; a keystone of the Treaty is its mechanisms for dispute settlement. Without these mechanisms, the Treaty would be little more than a statement of political intent, easy to endorse, and also relatively easy to ignore.
Contents:
1 Investment dispute resolution and the Energy Charter Treaty
Part I - Access to dispute resolution mechanisms under Article 26 of the Energy Charter Treaty
Juliet Blanch, Andy Moody and Nicholas Lawn
I Introduction II Jurisdictional requirements under Article 26(1) ECT
III Alternative venues for dispute resolution (Article 26(2) ECT)
IV International arbitration - unconditional consent to arbitrate
V International arbitration options
VI Key points: a comparison of the arbitration options
VII Access to dispute resolution mechanisms under Article 26 ECT: The statistics
Part II ? Denial of advantages under Article 17(1)
Stephen Jagusch and Anthony Sinclair
I Introduction II Interpretation of the meaning of "third state"
III Interpretation of the meaning of "substantial business activities"
IV Decisions on the application of Article 17(1)
V Comparative state practice on denial of benefits
VI Prior notification?
VII Effect of the denial: jurisdiction or admissibility?
VIII Conclusion
Part III - The provisional application of the Energy Charter Treaty
W. Michael Reisman
2 - Selected standards of treatment available under the Energy Charter Treaty
Part I - Fair and equitable treatment (FET): interactions with other standards
Christoph H. Schreuer
I Introduction
II FET and constant protection and security
III FET and unreasonable or discriminatory measures
IV FET and customary international law
V FET and the observance of contracts
VI FET and the observance of domestic law
VII FET and expropriation
VIII Conclusion
Part II - The scope of Most Favored Nation treatment under the Energy Charter Treaty
Paul D. Friedland
I A sampling of treaties on the subject of MFN clauses in relation to dispute resolution
II ICSID case law
III The ECT's MFN and dispute resolution clauses
Part III - Tax arbitration and investor protection
William W. Park
I Introduction
II The Matryoshka
III The nature of tax measures
IV The architecture of investment protection
V A tale of two cases: Occidental and Encana
VI Abusive taxes
VII Conclusion: The art of taxation
Appendix: Illustrative investment conventions
3 - Questions and observations: interactive session
Part I - The Energy Charter Treaty and corporate acquisition
Thomas W. Wälde and Walid Ben Hamida
I The arbitrability of ?pre-investment? (investment-admission) disputes under the ECT
II Can a public tender offer qualify as an existing "Investment" rather than a pre-investment activity?
III The applicability of the ECT to the relations between EC member states
Part II - How does the so-called "fork-in-the-road" provision in Article 26(3)(b)(i) of the Energy Charter Treaty work? Why did the United States decline to sign the Energy Charter Treaty?
Emmanuel Gaillard
4 - Interplay of the Energy Charter Treaty with other treaties
Part I - The role of the Energy Charter Treaty in the context of the European Union and Russia
Kaj Hobér
I Introduction
II The partnership and co-operation agreement
III The energy dialogue
IV The Energy Charter Treaty
V What lies ahead?
VI Concluding remarks
Part II - The Energy Charter Treaty and U.S. Investment Treaties: An overview of key contrasts
Andrea J. Menaker and Heather Van Slooten Walsh
I Introduction
II Scope
III Investment protection provisions
IV Dispute resolution provisions
V Conclusion
The Energy Charter Treaty: What Lies Ahead?
Graham Coop
I Change or development of the ECT
II New interpretations of the ECT
III Application of the ECT
IV Conclusion
Appendix Topics on CD-ROM Include:
ECT and Related Instruments
SCC Rules
ICSID Rules
UNCITRAL Arbitration Rules
Investment Protection and the Energy Charter Treaty, contains in depth substantive analysis of the interpretation and application of provisions of the Energy Treaty Charter including access to dispute resolution mechanisms under Article 26 of the Treaty and the standards of treatment for investors under the Energy Charter Treaty, including the guarantee of most favored nation treatment, protection against unfair and inequitable treatment, unreasonable and discriminatory measures, direct and indirect expropriation, breaches of investment agreements, damages due to war and similar events, and unjustified restrictions on the transfer of funds, as well as protection against certain types of tax measures. The book examines issues such as the arbitrability of "pre-investment" disputes under the Treaty and whether public tender offers can qualify as "existing" investment rather than "pre-investment" activity and the applicability of the ECT between members of the European Community. The role of the ECT in the context of the European Union and Russia (examining the legal dimension of the oil and gas relationship between the EU and Russia) and provides a comparison of the Energy Charter Treaty and other investment Treaties (distinguishing the ECT approach to investment protection in the context of disputes submitted to arbitration under its dispute resolution provisions).
The purpose of this book is to continue to raise awareness about the Energy Charter Treaty; a keystone of the Treaty is its mechanisms for dispute settlement. Without these mechanisms, the Treaty would be little more than a statement of political intent, easy to endorse, and also relatively easy to ignore.
Contents:
1 Investment dispute resolution and the Energy Charter Treaty
Part I - Access to dispute resolution mechanisms under Article 26 of the Energy Charter Treaty
Juliet Blanch, Andy Moody and Nicholas Lawn
I Introduction II Jurisdictional requirements under Article 26(1) ECT
III Alternative venues for dispute resolution (Article 26(2) ECT)
IV International arbitration - unconditional consent to arbitrate
V International arbitration options
VI Key points: a comparison of the arbitration options
VII Access to dispute resolution mechanisms under Article 26 ECT: The statistics
Part II ? Denial of advantages under Article 17(1)
Stephen Jagusch and Anthony Sinclair
I Introduction II Interpretation of the meaning of "third state"
III Interpretation of the meaning of "substantial business activities"
IV Decisions on the application of Article 17(1)
V Comparative state practice on denial of benefits
VI Prior notification?
VII Effect of the denial: jurisdiction or admissibility?
VIII Conclusion
Part III - The provisional application of the Energy Charter Treaty
W. Michael Reisman
2 - Selected standards of treatment available under the Energy Charter Treaty
Part I - Fair and equitable treatment (FET): interactions with other standards
Christoph H. Schreuer
I Introduction
II FET and constant protection and security
III FET and unreasonable or discriminatory measures
IV FET and customary international law
V FET and the observance of contracts
VI FET and the observance of domestic law
VII FET and expropriation
VIII Conclusion
Part II - The scope of Most Favored Nation treatment under the Energy Charter Treaty
Paul D. Friedland
I A sampling of treaties on the subject of MFN clauses in relation to dispute resolution
II ICSID case law
III The ECT's MFN and dispute resolution clauses
Part III - Tax arbitration and investor protection
William W. Park
I Introduction
II The Matryoshka
III The nature of tax measures
IV The architecture of investment protection
V A tale of two cases: Occidental and Encana
VI Abusive taxes
VII Conclusion: The art of taxation
Appendix: Illustrative investment conventions
3 - Questions and observations: interactive session
Part I - The Energy Charter Treaty and corporate acquisition
Thomas W. Wälde and Walid Ben Hamida
I The arbitrability of ?pre-investment? (investment-admission) disputes under the ECT
II Can a public tender offer qualify as an existing "Investment" rather than a pre-investment activity?
III The applicability of the ECT to the relations between EC member states
Part II - How does the so-called "fork-in-the-road" provision in Article 26(3)(b)(i) of the Energy Charter Treaty work? Why did the United States decline to sign the Energy Charter Treaty?
Emmanuel Gaillard
4 - Interplay of the Energy Charter Treaty with other treaties
Part I - The role of the Energy Charter Treaty in the context of the European Union and Russia
Kaj Hobér
I Introduction
II The partnership and co-operation agreement
III The energy dialogue
IV The Energy Charter Treaty
V What lies ahead?
VI Concluding remarks
Part II - The Energy Charter Treaty and U.S. Investment Treaties: An overview of key contrasts
Andrea J. Menaker and Heather Van Slooten Walsh
I Introduction
II Scope
III Investment protection provisions
IV Dispute resolution provisions
V Conclusion
The Energy Charter Treaty: What Lies Ahead?
Graham Coop
I Change or development of the ECT
II New interpretations of the ECT
III Application of the ECT
IV Conclusion
Appendix Topics on CD-ROM Include:
ECT and Related Instruments
SCC Rules
ICSID Rules
UNCITRAL Arbitration Rules
More details
Persons
Graham Coop, General Counsel, Energy Charter Secretariat, Brussels
Graham Coop joined the Energy Charter Secretariat as General Counsel in 2004. Prior to this, he was Head of the Energy and Natural Resources Group at Freshfields Bruckhaus Deringer, Paris, where he was based from 1992 until 2002, followed by two years as a partner with Denton Wilde Sapte's Energy and Infrastructure Department in London. He was a member of the legal team representing Bahrain in its territorial sovereignty and maritime delimitation dispute with Qatar in the International Court of Justice and received the Order of Bahrain as a result of his work on that dispute. In 1998 and 1999 he was seconded to lead the 5-lawyer International Transport and Supply Contracts Division of the Legal Service of Gaz de France, the French gas utility. He has written and spoken extensively on international legal questions, including legal issues for international energy companies investing in Iraq. He has advised governments and international corporations on disputed sovereignty and maritime delimitation issues throughout the Middle East. His extensive experience in oil, gas, electricity, water, renewable energy and infrastructure covers major projects, joint ventures, supply agreements, transport agreements, competition and regulatory issues, and contentious matters. He is regularly published and cited in the U.K., French and Arabic press and speaks regularly at conferences in the U.K., Continental Europe and Africa.
Clarisse Ribeiro, Legal Counsel, Energy Charter Secretariat, Brussels
Clarisse Ribeiro joined the Energy Charter Secretariat in 2002 and is Legal Counsel in the Legal Affairs unit. Among her responsibilities, Ms Ribeiro is actively involved in the Legal Advisory Task Force, mandated by the Energy Charter Conference to prepare model agreements for the construction of cross-border pipelines, and is responsible for contacts with the Legal Department of the Portuguese Ministry for Foreign Affairs, the Depository of the Energy Charter Treaty. Prior to joining the Energy Charter Secretariat, Ms Ribeiro worked as an Official for the Secretariat Division of the European Central Bank in Frankfurt am Main.
Graham Coop joined the Energy Charter Secretariat as General Counsel in 2004. Prior to this, he was Head of the Energy and Natural Resources Group at Freshfields Bruckhaus Deringer, Paris, where he was based from 1992 until 2002, followed by two years as a partner with Denton Wilde Sapte's Energy and Infrastructure Department in London. He was a member of the legal team representing Bahrain in its territorial sovereignty and maritime delimitation dispute with Qatar in the International Court of Justice and received the Order of Bahrain as a result of his work on that dispute. In 1998 and 1999 he was seconded to lead the 5-lawyer International Transport and Supply Contracts Division of the Legal Service of Gaz de France, the French gas utility. He has written and spoken extensively on international legal questions, including legal issues for international energy companies investing in Iraq. He has advised governments and international corporations on disputed sovereignty and maritime delimitation issues throughout the Middle East. His extensive experience in oil, gas, electricity, water, renewable energy and infrastructure covers major projects, joint ventures, supply agreements, transport agreements, competition and regulatory issues, and contentious matters. He is regularly published and cited in the U.K., French and Arabic press and speaks regularly at conferences in the U.K., Continental Europe and Africa.
Clarisse Ribeiro, Legal Counsel, Energy Charter Secretariat, Brussels
Clarisse Ribeiro joined the Energy Charter Secretariat in 2002 and is Legal Counsel in the Legal Affairs unit. Among her responsibilities, Ms Ribeiro is actively involved in the Legal Advisory Task Force, mandated by the Energy Charter Conference to prepare model agreements for the construction of cross-border pipelines, and is responsible for contacts with the Legal Department of the Portuguese Ministry for Foreign Affairs, the Depository of the Energy Charter Treaty. Prior to joining the Energy Charter Secretariat, Ms Ribeiro worked as an Official for the Secretariat Division of the European Central Bank in Frankfurt am Main.
Content
Editors
Contributors
Introductory Remarks
Ana Palacio
André Mernier
Ulf Franke
Introduction
Anne Houtman
The negotiation of the Energy Charter Treaty
Craig S. Bamberger
Chapter 1 - Investment dispute resolution and the Energy Charter Treaty
Part I - Access to dispute resolution mechanisms under Article 26 of the Energy Charter Treaty
Juliet Blanch, Andy Moody and Nicholas Lawn
I Introduction
II Jurisdictional requirements under Article 26(1) ECT
III Alternative venues for dispute resolution (Article 26(2) ECT)
IV International arbitration - unconditional consent to arbitrate
V International arbitration options
VI Key points: a comparison of the arbitration options
VII Access to dispute resolution mechanisms under Article 26 ECT: The statistics
Part II - Denial of advantages under Article 17(1)
Stephen Jagusch and Anthony Sinclair
I Introduction
II Interpretation of the meaning of "third state"
III Interpretation of the meaning of "substantial business activities"
IV Decisions on the application of Article 17(1)
V Comparative state practice on denial of benefits
VI Prior notification?
VII Effect of the denial: jurisdiction or admissibility?
VIII Conclusion
Part III - The provisional application of the Energy Charter Treaty
W. Michael Reisman
Chapter 2 - Selected standards of treatment available under the Energy Charter Treaty
Part I - Fair and equitable treatment (FET): interactions with other standards
Christoph H. Schreuer
I Introduction
II FET and constant protection and security
III FET and unreasonable or discriminatory measures
IV FET and customary international law
V FET and the observance of contracts
VI FET and the observance of domestic law
VII FET and expropriation
VIII Conclusion
Part II - The scope of Most Favored Nation treatment under the Energy Charter Treaty
Paul D. Friedland
I A sampling of treaties on the subject of MFN clauses in relation to dispute resolution
II ICSID case law
III The ECT's MFN and dispute resolution clauses
Part III - Tax arbitration and investor protection
William W. Park
I Introduction
II The Matryoshka
III The nature of tax measures
IV The architecture of investment protection
V A tale of two cases: Occidental and Encana
VI Abusive taxes
VII Conclusion: The art of taxation
Appendix: Illustrative investment
conventions
Chapter 3 - Questions and observations: interactive session
Part I - The Energy Charter Treaty and corporate acquisition
Thomas W. Wälde and Walid Ben Hamida
I The arbitrability of "pre-investment" (investment-admission) disputes under the ECT
II Can a public tender offer qualify as an existing "Investment" rather than a pre-investment
activity?
III The applicability of the ECT to the relations between EC member states
Part II - How does the so-called "fork-in-the-road" provision in Article 26(3)(b)(i) of the Energy Charter
Treaty work? Why did the United States decline to sign the Energy Charter Treaty?
Emmanuel Gaillard
Chapter 4 - Interplay of the Energy Charter Treaty with other treaties
Part I - The role of the Energy Charter Treaty in the context of the European Union and Russia
Kaj Hobér
I Introduction
II The partnership and co-operation agreement
III The energy dialogue
IV The Energy Charter Treaty
V What lies ahead?
VI Concluding remarks
Part II - The Energy Charter Treaty and U.S. Investment Treaties: An overview of key contrasts
Andrea J. Menaker and Heather Van Slooten Walsh
I Introduction:
II Scope
III Investment protection provisions
IV Dispute resolution provisions
V Conclusion
The Energy Charter Treaty: What Lies Ahead?
Graham Coop
I Change or development of the ECT
II New interpretations of the ECT
III Application of the ECT
IV Conclusion
Index
Appendix Topics on CD-ROM Include:
ECT and Related Instruments
SCC Rules
ICSID Rules
UNCITRAL Arbitration Rules
Contributors
Introductory Remarks
Ana Palacio
André Mernier
Ulf Franke
Introduction
Anne Houtman
The negotiation of the Energy Charter Treaty
Craig S. Bamberger
Chapter 1 - Investment dispute resolution and the Energy Charter Treaty
Part I - Access to dispute resolution mechanisms under Article 26 of the Energy Charter Treaty
Juliet Blanch, Andy Moody and Nicholas Lawn
I Introduction
II Jurisdictional requirements under Article 26(1) ECT
III Alternative venues for dispute resolution (Article 26(2) ECT)
IV International arbitration - unconditional consent to arbitrate
V International arbitration options
VI Key points: a comparison of the arbitration options
VII Access to dispute resolution mechanisms under Article 26 ECT: The statistics
Part II - Denial of advantages under Article 17(1)
Stephen Jagusch and Anthony Sinclair
I Introduction
II Interpretation of the meaning of "third state"
III Interpretation of the meaning of "substantial business activities"
IV Decisions on the application of Article 17(1)
V Comparative state practice on denial of benefits
VI Prior notification?
VII Effect of the denial: jurisdiction or admissibility?
VIII Conclusion
Part III - The provisional application of the Energy Charter Treaty
W. Michael Reisman
Chapter 2 - Selected standards of treatment available under the Energy Charter Treaty
Part I - Fair and equitable treatment (FET): interactions with other standards
Christoph H. Schreuer
I Introduction
II FET and constant protection and security
III FET and unreasonable or discriminatory measures
IV FET and customary international law
V FET and the observance of contracts
VI FET and the observance of domestic law
VII FET and expropriation
VIII Conclusion
Part II - The scope of Most Favored Nation treatment under the Energy Charter Treaty
Paul D. Friedland
I A sampling of treaties on the subject of MFN clauses in relation to dispute resolution
II ICSID case law
III The ECT's MFN and dispute resolution clauses
Part III - Tax arbitration and investor protection
William W. Park
I Introduction
II The Matryoshka
III The nature of tax measures
IV The architecture of investment protection
V A tale of two cases: Occidental and Encana
VI Abusive taxes
VII Conclusion: The art of taxation
Appendix: Illustrative investment
conventions
Chapter 3 - Questions and observations: interactive session
Part I - The Energy Charter Treaty and corporate acquisition
Thomas W. Wälde and Walid Ben Hamida
I The arbitrability of "pre-investment" (investment-admission) disputes under the ECT
II Can a public tender offer qualify as an existing "Investment" rather than a pre-investment
activity?
III The applicability of the ECT to the relations between EC member states
Part II - How does the so-called "fork-in-the-road" provision in Article 26(3)(b)(i) of the Energy Charter
Treaty work? Why did the United States decline to sign the Energy Charter Treaty?
Emmanuel Gaillard
Chapter 4 - Interplay of the Energy Charter Treaty with other treaties
Part I - The role of the Energy Charter Treaty in the context of the European Union and Russia
Kaj Hobér
I Introduction
II The partnership and co-operation agreement
III The energy dialogue
IV The Energy Charter Treaty
V What lies ahead?
VI Concluding remarks
Part II - The Energy Charter Treaty and U.S. Investment Treaties: An overview of key contrasts
Andrea J. Menaker and Heather Van Slooten Walsh
I Introduction:
II Scope
III Investment protection provisions
IV Dispute resolution provisions
V Conclusion
The Energy Charter Treaty: What Lies Ahead?
Graham Coop
I Change or development of the ECT
II New interpretations of the ECT
III Application of the ECT
IV Conclusion
Index
Appendix Topics on CD-ROM Include:
ECT and Related Instruments
SCC Rules
ICSID Rules
UNCITRAL Arbitration Rules