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.
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. WäldePart 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 Republic5. 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