Originally from:
Energy Dispute Resolution: Investment Protection, Transit and the Energy Charter Treaty - Hardcover
Energy Dispute Resolution: Investment Protection, Transit and the Energy Charter Treaty - Electronic
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CHAPTER 9
PROVISIONAL APPLICATION OF THE ENERGY CHARTER
TREATY: THE NEGOTIATING HISTORY OF ARTICLE 45
Yas Banifatemi*
Initiating an arbitration against a State on the basis of an
investment treaty assumes that the claiming party has ensured
that it satisfies the qualifying conditions under the treaty, namely
that it is a protected investor under the treaty, that its investment
is protected under the treaty, and that the dispute is covered by
the temporal application of the treaty. These are, respectively, the
requirements ratione personae, ratione materiae and ratione temporis
on the basis of which a respondent State may object to an arbitral
tribunal’s jurisdiction and failing which the arbitration cannot
proceed. The very first requirement, of course, is for the treaty to
have come into force and to be binding on the host State.
Entry into force of a treaty for a State will often require the
accomplishment of a formal process such as ratification,
acceptance, approval or accession to the treaty, all of which are
defined by Article 2(1)(b) of the Vienna Convention on the Law of
Treaties of 1969 (the “Vienna Convention”) as the international
Yas Banifatemi is a partner in Shearman & Sterling’s
International Arbitration Group and leads the firm’s Public
International Law Practice. Yas has represented multinational
corporations, States and State-owned entities in over 50
international arbitration cases (with a focus on investment and oil
& gas arbitrations). In particular, she is currently representing
parties in 4 arbitrations brought under the Energy Charter Treaty,
including the three arbitrations brought by the majority shareholders
in Yukos Oil Company against the Russian Federation.
