Investment Arbitration and the Energy Charter Treaty

Investment Arbitration and the Energy Charter Treaty provides the first authoritative analysis of investment arbitration and its relationship to the Energy Charter Treaty (ECT). This book is based on a conference co-organized in Stockholm on 9 and 10 June 2005 by the Energy Charter Secretariat and the Arbitration Institute of the Stockholm Chamber of Commerce and reflects the growing importance of investment arbitration for international commerce. This was the first international conference specifically addressing questions of investment arbitration in relation to ECT and this publication will no doubt contribute to raising awareness about the Treaty and its provisions. To date, 51 countries have ratified the ECT. The ECT is of great importance in that it provides for direct arbitral recourse in settlement of disputes that arise under the Treaty. Many legal problems and issues to which the interpretation and application of the Treaty may give rise are searchingly explored in the Chapters of Investment Arbitration and the Energy Charter Treaty. These chapters have been prepared by scholars of great distinction who include advocates of exceptional ability and reasoning. Their analytical skills in dissecting salient issues posed by the Energy Charter Treaty and investment arbitration will be apparent to the reader.

The Energy Charter Treaty has great significance in the investment arbitration world. This emerging interest came as a result not only of the arbitral awards recently rendered under the ECT, but also of recently initiated and highly visible arbitral proceedings. In relation to the investment chapter of the Treaty, there have already been a number of cases brought by private investors to international arbitration. The first award issued under the ECT was rendered under the auspices of the Arbitration Institute of the Stockholm Chamber of Commerce in December 2003.

In sum, Investment Arbitration and the Energy Charter Treaty is an essential tool and resource for anybody working with the Energy Charter Treaty in particular and investment arbitration in general.

PDF of Title Page and T.O.C.

Foreword

Remarks by Judge Stephen Schwebel

Editor's Preface

List of Contributors

Chapter 1 Introduction to the Energy Charter Treaty (ECT)

Introduction
Dr. Hans Corell

Part 1 - The Energy Charter Treaty: More Than a MIT
Graham Coop

Part 2 - The Dispute Settlement Mechanisms of the Energy Charter Treaty
Laurent Gouiffès

Chapter 2 - Investments and Investors Covered by the ECT and other Investment Protection Treaties

Introduction
Antonio R. Parra

Part 1 - Investments and Investors Covered by the Energy Charter Treaty
Emmanuel Gaillard

Part 2 - The Limits of Protection for Investments and Investors under the Energy Charter Treaty
Stephen Jagusch & Anthony Sinclair

Chapter 3 - The Concept of Expropriation under the ECT and other Investment Protection Treaties

Introduction:
Sergei N. Lebedev

Part 1 - Rapport: The Concept of Expropriation under the ECT and other Investment Protection Treaties
Christoph H. Schreuer

Part 2 - Comments on the Rapport

I - Indirect Expropriation and the Right of the Governments to Regulate Criteria to Articulate the Difference
Katia Yannaca-Small

II -The Distinction Between Lawful and Unlawful Expropriation
Audley Sheppard

Chapter 4 - The Relationship Between Contractual Claims and Claims under the ECT and other Investment Protection Treaties

Introduction: Treaty versus Contract Claims
Gabrielle Kaufmann-Kohler

Part 1 - Contract Claims under the Energy Charter Treaty’s Umbrella Clause: Original
           Intentions versus Emerging Jurisprudence
           Thomas W. Wälde

Part 2 - Multiple Judicial Proceedings and the Energy Charter Treaty
           Christer Söderlund

Chapter 5 - State Responsibility under the ECT and other Investment Protection Treaties

Introduction: Applicable Law to State Responsibility under the Energy Charter Treaty and other Investment Protection Treaties
Karl-Heinz Böckstiegel

Part 1 - State Responsibility and Investment Arbitration
Kaj Hobér

Part 2 - State Responsibility under the Energy Charter Treaty and other Investment Protection Treaties
Anatoly S. Martynov

Chapter 6 - Arbitration under the ECT and other Investment Protection Treaties

Introduction: Parallel Proceedings: The Issues and (Where Are?) the Solutions Michael Polkinghorne

Part 1 - Parallel Arbitration Tribunals and Awards
Bernardo M. Cremades

Part 2 - The Nykomb Case in the Light of Recent ICSID Jurisprudence
Richard Happ

Appendix - Awards Rendered under ECT

Appendix 1 - Nykomb v. Latvia

1.  Introduction

2.  Jurisdiction

3.  General background

4.  The legal basis for the claims against
     the Republic

5.  Assessment of losses or damages

6.  Allocation and allowability of costs

7.  Arbitral award

Appendix 2 - Petrobart v. Kyrgyzstan

I.     The contract

II.    Relevant facts

III.   The Foreign Investment Law and proceedings regarding that law

IV.   The Energy Charter Treaty

V.    Proceedings

VI.   Claims

VII.  Grounds and arguments

VIII. Reasons

Appendix 3 - Plama v. Bulgaria
(Decision on Jurisdiction)

I.    Procedure

II.   Background facts

III.  The submissions of the parties on jurisdiction

IV. Examination of the parties’ submissions

V.    The decision

Index

Appendix Topics on CD-ROM Include:

ECT and Related Instruments

SCC Rules

ICSID Rules

UNCITRAL Arbitration Rules

About the Editor:

Clarisse Ribeiro, 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.

Before taking a post-graduate diploma (DESS) in public international law at the University of Paris I Panthéon-Sorbonne, which she passed with first class honours in 2000, Ms Ribeiro graduated with honours from the University of Paris II Panthéon-Assas.

About the Contributors:

Karl-Heinz Böckstiegel, Independent Arbitrator, Member of Law Faculty of University of Cologne as Professor Emeritus.

Graham Coop, General Counsel, Energy Charter Secretariat

Hans Corell, UN Under-Secretary-General for Legal Affairs and Legal Counsel

Bernardo M. Cremades, Senior Partner, B. Cremades y Asociados, Madrid

Emmanuel Gaillard, Partner, Head of the International Arbitration Group, Shearman & Sterling LLP, Paris; Professor of Law, University of Paris XII

Laurent Gouiffès, Of Counsel, Allen & Overy, London and Paris

Richard Happ, Attorney, Luther Rechtsanwaltsgesellschaft mbH

Kaj Hobér, Partner, Mannheimer Swartling Advokatbyrå, Stockholm

Stephen Jagusch, Partner, Allen & Overy LLP, London

Gabrielle Kaufmann-Kohler, Professor, School of Law, Geneva University; Partner, Schellenberg Wittmer, Geneva

Sergei N. Lebedev, President, Maritime Arbitration Commission at the Chamber of Commerce and Industry of the Russian Federation, Moscow

Anatoly Martynov, Director General of the Centre for Trade Policy and Law, Moscow

Antonio R. Parra, Visiting Professor, Faculty of Laws, University College London

Michael Polkinghorne,

Partner, White & Case, Paris

Christoph H. Schreuer, Professor of Law University of Vienna, School of Law, Department of International Law and International Relations, Vienna

Audley Sheppard, Partner, Clifford Chance LLP, London

Anthony Sinclair, Associate, Allen & Overy LLP, London

Christer Söderlund, Partner, Advokatfirman Vinge KB., Stockholm

The Late Thomas W. Wälde, Professor & Jean Monnet Chair, CEPMLP, University of Dundee

Katia Yannaca-Small, Legal Advisor to the Investment Division, Directorate for Financial and Enterprise Affairs in the OECD, Paris

Author/Editor Detail: