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Investment Protection and The Energy Charter Treaty - Hardcover
Investment Protection and The Energy Charter Treaty - Electronic
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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 Lawn1
I Introduction
Although the Energy Charter Treaty (“ECT”) was signed in
December 1994 and entered into full legal force in April 1998, it
was not until April 2001 that an investor first sought to access the
dispute resolution mechanisms under the Treaty in order to
protect its rights.2 However, since that date, there has been a
gradual increase in the number of investor-state claims brought
under the Treaty, reaching a high point in 2005 when six claims
were registered.3 It would appear that investors are becoming
more and more aware of their rights under the Treaty and more
and more willing to enforce those rights under the mechanisms
provided in the Treaty. This part first provides a simple
introduction to the mechanisms for the resolution of investor-state
disputes under the Treaty and then briefly sets out a comparison
of those mechanisms.
The starting point is Article 26 in Part V of the Treaty. Article
26 provides the dispute resolution mechanisms in relation to
investor-state investment disputes. It is an extremely important
provision of the Treaty as the rights and obligations set out in Part
III of the Treaty are guaranteed by the dispute resolution
mechanisms provided in Article 26 ECT. It gives Investors (as
defined in the ECT) a directly enforceable right to bring claims
against host states in relation to alleged breaches of Part III ECT.4
It is worth noting that the dispute resolution mechanisms under
Article 26 ECT are not available where the dispute in question
relates to an obligation outside of Part III ECT. For example,
disputes between Contracting Parties are to be resolved by the
procedures set out in Article 27 ECT.
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
Juliet Blanch, Andy Moody and Nicholas Lawn, International Dispute Resolution, McDermott Will & Emery UK LLP, London.
Stephen Jagusch, Partner, International Arbitration Group, Allen & Overy LLP and Senior
Anthony Sinclair, Associate, International Arbitration Group, Allen & Overy LLP.
W. Michael Reisman, McDougal Professor of International Law, Yale Law School.
