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Ownership of the Oil and Gas Resources in the Caspian Sea
Kaj Hobér
4.1 Introduction
A large portion of the oil and gas reserves in Central Asia are
believed to lie under the Caspian Sea. The extent to which this belief
is in fact true remains to be established. For a number of reasons, it is
difficult to measure the true wealth of the Caspian Sea. On the one
hand, it would seem that the littoral states typically have an interest in
exaggerating the potential of the Caspian Sea, primarily with a view to
maintaining its attractiveness to outside investment. On the other
hand, foreign oil companies interested in the oil and gas resources in
the Caspian Sea have a tendency to downplay the potential,
presumably in the hope of being able to strike better deals. Even
though the Caspian oil reserves cannot match those of Saudi Arabia
or other states in the Persian Gulf region, it is clear that Caspian oil
has the potential of playing an important role for future worldwide
oil supply and thus for oil prices. This is in short the explanation why
the question of the ownership of the Caspian oil and gas resources,
including the right to license and tax their development is being
debated by the Caspian littoral states, i.e. Russia, Kazakhstan, Iran,
Azerbaijan and Turkmenistan.
The legal status of the Caspian Sea became a potential issue as the
result of the dissolution of the Soviet Union in 1991. Overnight the
number of foreign states around the Caspian Sea rose from two – the
Soviet Union and Iran – to five. The issue de facto came onto the
international agenda in 1994 when the Russian Ministry of Foreign
Affairs sent a note to the British Embassy in Moscow saying that the
ownership of Caspian resources remained to be settled, a statement
made in connection with an investment agreement signed by the
Azeri government and a British Petroleum led consortium.
Full Table of Contents from "Essays on International Arbitration"
Acknowledgements
Introduction
1. History and Development of Interstate Arbitration
1.1 Introduction
1.2 The Jay Treaty Arbitrations (1794)
1.3 Post Jay Treaty Arbitrations (1795 - 1870)
1.4 The Alabama Claims Arbitration
1.5 The last decades of the 19th century (1875 - 1899)
1.6 The Hague Peace Conferences and beyond (1899 - 1920)
1.7 The Treaty of Versailles and the League of Nations (1920 - 1940)
1.8 Post Second World War Arbitrations and Developments
1.9 Concluding Remarks
2. Choice of Law by the Parties in Interstate Arbitration
2.1 Party Autonomy in interstate arbitration
2.2 Party Autonomy and the International Court of Justice
2.3 Unfettered party autonomy criticised
2.4 The rationale of party autonomy
2.5 The obligation to respect party autonomy
2.6 Restrictions on party autonomy
3. Extinctive Prescription and Public International Law
3.1 Introduction
3.2 Does extinctive Prescription exist under Public International Law?
3.3 Opinions of writers
3.4 Decisions rendered by international tribunals
3.5 The Rationale Underlying Extinctive Prescription in International Law
3.6 When is the Principle of Extinctive Prescription Applicable?
3.7 Extinctive Prescription distinguished
3.8 Is Extinctive Prescription Procedural or Substantive in Nature?
3.9 Municipal Statutes of Limitation and Extinctive Prescription under Public International Law
3.10 Extinctive Prescription and ius cogens
3.11 Summary and Concluding Remarks
4. Ownership of the Oil and Gas Resources in the Caspian Sea: Problems and Solutions - International Arbitration and Contractual Clauses
4.1 Introduction
4.2 The Legal Status of the Caspian Sea: Sea or Lake -- what difference does it make?
4.3 International arbitration is one possible solution.
4.4 Why arbitration?
4.5 Is arbitration realistic?
4.6 Proposed Arbitration Agreement
4.7 Contractual approaches to reducing the political risk
5. Arbitration involving states
5.1 Introduction
5.2 State Immunity -- old Wine in new Bottles?
5.3 Confidentiality v. Publicity
5.4 The growing Importance of Public International Law
6. Investment Arbitration in Eastern Europe: Recent Cases on Expropriation
6.1 Introduction
6.2 Expropriation
6.3 Current state of International Law with respect to Expropriation
6.4 The Minimum International Standard
6.5 Bilateral Investment Protection Treaties
6.6 The Sedelmayer Case
6.7 The 1998 Financial Crisis in Russia
6.8 The Land Use Permit Case
6.9 The SwemBalt Case
6.10 Golden Shares in Russian Companies
6.11 The Estonian Bank Licence Case
6.12 The Lauder Cases
6.13 The Energy Charter Treaty
6.14 The First ECT Arbitral Award
6.15 Concluding remarks
7. The First Energy Charter Treaty Arbitral Award
7.1 Introduction
7.2 The Dispute in a Nutshell
7.3 The Arguments
7.4 The conclusions of the Arbitral Tribunal
7.5 The key legal issues
7.6 Concluding remarks
8. Arbitration Reform in Sweden
8.1 Introduction
8.2 The Arbitration Agreement
8.3 The Arbitrators
8.4 The Procedure
8.5 The Award
8.6 Finality and Enforceability of Arbitral Awards
9. Advocacy in International Commercial Arbitration: Sweden
9.1 Introduction
9.2 General Principles of Swedish Judicial Procedure
9.3 Swedish Arbitration Procedure
9.4 Written Submissions
9.5 Evidence
9.6 Production of Documents
9.7 Hearing of Witnesses
9.8 Hearing of Experts
9.9 Inspection of the Subject Matter of the Dispute
APPENDICES
Appendix 1
Joint Statement of the Russian Federation and the Islamic Republic of Iran on the Legal Status of the Caspian Sea
Appendix 2
Agreement between the Russian Federation, the Azerbaijani Republic and the Republic of Kazakhstan on the Point of Intersection of the Lines Delimiting Adjacent Areas of the Caspian Seabed
Appendix 3
Agreement between the Russian Federation and the Republic of Kazakhstan on delimitation of the seabed in the northern part of the Caspian Sea for the exercise of their sovereign rights to use the subsurface resources
Appendix 4
Protocol to the Agreement between the Russian Federation and the Republic of Kazakhstan on delimitation of the seabed in the northern part of the Caspian Sea for the exercise of their sovereign rights to use the subsurface resources of 6 July 1998
Appendix 5
Agreement between the Russian Federation and the Azerbaijani Republic on Delimitation of Adjacent Areas of the Caspian Seabed
Appendix 6
Agreement between the Republic of Kazakhstan and the Azerbaijani Republic on delimitation of the Caspian seabed between the Republic of Kazakhstan and the Azerbaijani Republic
Appendix 7
The Swedish Arbitration Act of 1999 (SFS 1999:116)
Kaj Hobér is a Partner of Mannheimer Swartling, resident Stockholm office and Professor of East European Commercial Law at Uppsala University, Uppsala. His practice areas include: international arbitration, East European law, international investment and trade, international business transactions. He has been heavily involved in the legal aspects of doing business in Eastern Europe and the former Soviet Union for the last 20 years. His arbitration experience includes representing both eastern and western European, American and Russian parties as well as parties from developing countries in international arbitrations taking place in Stockholm, Moscow, London, Paris, New York, Vienna and elsewhere. Mr. Hobér has also been involved in numerous oil arbitrations, relating primarily to northern Africa, the Middle East and the former Soviet Union and has acted as arbitrator in more than 150 international arbitrations (including chairmanships) and as counsel in approximately 150 international arbitrations.
Professional memberships include: member of the Swedish Bar Association; member of the American Bar Association; member of the Board of the Swedish Scientific Institute of Arbitration Law, the Board of the Arbitration Institute of the Stockholm Chamber of Commerce, the International Arbitration Club (London) and member of the ICC Institute of International Business and Law (corresponding member). He has been listed as arbitrator on the panels of the Austrian Federal Chamber of Commerce, Vienna, the Chamber of Commerce and Industry of the Russian Federation, Moscow, the Ukrainian Chamber of Commerce, Kiev, the American Arbitration Association and of the ICSID Arbitration Center, Washington DC. He is also a Commissioner at the United Nations Compensation Commission in Geneva.
