The Energy Charter Treaty (1994) (ECT) - World Arbitration Reporter (WAR) - 2nd Edition
Norah Gallagher is the Director of the Investment Treaty Forum, Visiting Senior Lecturer, Queen Mary, University of London, and Adjunct Professor, Xi’an Jiaotong University.
Originally from World Arbitration Reporter (WAR) - 2nd Edition
A. Purpose
The Energy Charter Treaty of 1994 is one of the most significant multilateral treaties currently in force. It is unique as it regulates the biggest, and often most politically sensitive, industry in the world, energy. Its purpose is stated in Article 2 of the treaty “to establish a legal framework in order to promote long-term cooperation in the energy field ....” Article 2 confirms that this will be achieved “in accordance with the objectives and principles of the Charter,” in this way incorporating the provisions of the European Energy Charter signed on 17 December 2001. The preamble of the Energy Charter Treaty (ECT) makes it clear that the primary aim was to encourage economic growth through the adoption of “measures to liberalise investment and trade in energy.” It is an ambitious treaty in terms of its aim to regulate cooperation and development in the energy sector covering trade, competition, transit, environment, access to capital and investment protection. The ECT also gives the right to investors to take a claim directly against a host state. Previously, in the petroleum industry each company would have had to negotiate an arbitration provision in a concession agreement.
Since then, there has been a significant change in the international legal framework relating to foreign investment. There are now almost 3,000 bilateral investment treaties in place many of which would also cover energy investment. However, the ECT is the only multilateral treaty relating to the energy sector and as such will continue to gain prominence. The ECT is expected to be relied on in the future to ensure the security of energy supplies; create a stable and predictable legal regime for disputes that arise under Part III;1 and also to assist and encourage methods of energy production that will combat climate change.
THE ENERGY CHARTER TREATY (1994) (ECT) - TABLE OF CONTENTS from World Arbitration Reporter (WAR) - 2nd Edition
THE ENERGY CHARTER TREATY (1994) (ECT)
I. INTRODUCTION
A. Purpose
B. Historical Background
C. Structure
1. Energy Charter Conference
2. The Energy Charter Process (ECP)
3. Energy Charter Secretariat
D. ECT Contracting Parties
1. Member States
a) Non-Ratifying Signatories Applying the Entire ECT Provisionally
b) Non-Ratifying Signatories Applying Only Part VII of the ECT Provisionally
c) Observers to the Energy Charter Conference
E. Implementing Legislation
F. Duration
II. COMMENTARY
A. Definitions
1. Investment
2. Investment Dispute
3. Investor
B. Substantive Rights
1. Part II
2. Part III
3. Article 10: promotion, protection and treatment of investments
a) Pre-investment obligations
4. Article 13: Expropriation Standards
5. Article 17: Non-application of Part III in Certain Circumstances
6. Part III Additional Provisions
7. Part IV Miscellaneous Provisions – Article 19: Environment
8. Part VIII – Article 45: Provisional Application
C. Settlement of Disputes
1. Article 26: Investor–State Disputes
a) Investor–state forum options
b) Exceptions to the consent to arbitrate
c) The European Communities
2. Article 27: Settlement of Disputes Between Contracting Parties
a) State–state forum options
b) Exceptions to the consent to arbitrate
3. Applicable Law
4. Part VI Transitional Provisions – Trade
III. JUDICIAL/ARBITRAL DECISIONS
A. Case and Award Summaries
1. Nykomb Synergetics Technology Holding AB (Sweden) v. Latia SSC Award, 16 December 2003
2. Petrobart Ltd. (Gibraltar) v. Kyrgyz Republic SSC Award, 29 March 2005
3. Plama Consortium Ltd v. Bulgaria ICSID Case No ARB/03/24, Award on Jurisdiction, 28 October 2005 and Final Award, 27 August 2008
4. Yukos Universal Ltd. (U.K. – Isle of Man) v. Russian Federation; Hulley Enterprises Ltd. (Cyprus) v. Russian Federation and Veteran Petroleum Trust (Cyprus) v. Russian Federation UNCITRAL Arbitration Award on Jurisdiction, 30 November 2009
5. Ioannis Kardassopoulos v. Georgia ICSID Case No. ARB/05/18, Award on Jurisdiction, 6 July 2007
6. AMTO v. Ukraine SCC Case No. 080/2005,Award, 26 March 2008
7. Hrvatska Elektropriveda d.d. (HEP) v. Republic of Slovenia ICSID Case No. ARB/05/24
8. Azpetrol International Holdings BV, Azpetrol Group BV and Azpetrol Oil Services Group BV v. Azerbaijan ICSID Case No. ARB/06/15
9. Cementownia “Nowa Huta” SA v. Republic of Turkey ICSID Case No. ARB(AF)/06/2, Award on Jurisdiction, 17 September 2009
10. Europe Cement Investment and Trade SA v. Republic of Turkey ICSID Case No. ARB(AF)/07/2, Award on Jurisdiction, 13 August 2009
IV. APPENDIX
A. Text of the Energy Charter Treaty (See CD-ROM)
B. Concluded ECT Disputes
C. Pending ECT Disputes
D. Bibliography