Appendices - Investment Arbitration and the Energy Charter Treaty
About the Editor:
Clarisse Ribeiro, Counsel, Energy Charter Secretariat, Brussels
Clarisse Ribeiro joined the Energy Charter Secretariat in 2002 and is Legal Counsel in the Legal Affairs unit. Among her responsibilities, Ms. Ribeiro is actively involved in the Legal Advisory Task Force, mandated by the Energy Charter Conference to prepare model agreements for the construction of cross-border pipelines, and is responsible for contacts with the Legal Department of the Portuguese Ministry for Foreign Affairs, the Depository of the Energy Charter Treaty. Prior to joining the Energy Charter Secretariat, Ms. Ribeiro worked as an Official for the Secretariat Division of the European Central Bank in Frankfurt am Main.
Before taking a post-graduate diploma (DESS) in public international law at the University of Paris I Panthéon-Sorbonne, which she passed with first class honours in 2000, Ms Ribeiro graduated with honours from the University of Paris II Panthéon-Assas.
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Investment Arbitration and the Energy Charter Treaty - Hardcover
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Appendices
Clarisse Ribeiro
THE ARBITRATION INSTITUTE OF
THE STOCKHOLM CHAMBER OF COMMERCE
ARBITRAL AWARD
Rendered in Stockholm, Sweden
on 16 December 2003
1. Introduction
1.1 Overview
Nykomb Synergetics Technology Holding AB (“Nykomb”) is a
joint stock company organized in 1995 under the laws of Sweden.
SIA Windau (“Windau”) is a joint stock company organized in
1991 under the laws of Latvia. Windau was originally 100 per cent
owned and controlled by Latvian citizens, but Nykomb acquired
51 per cent of the share capital in March 1999 and 49 per cent in
September 2000, making Windau a 100 per cent owned subsidiary
of Nykomb.
The State Joint-Stock Company Latvenergo (“Latvenergo”) was
organized as a state enterprise under Latvian law in 1991, and was
in 1993 transformed into a joint stock company under Latvian law.
The Republic of Latvia (the “Republic”) owns 100 per cent of the
shares in Latvenergo. By an amendment of 3 August 2000 to the
Latvian Energy Law the company is defined as “a national
economy object of the State economy” that shall not be privatized.
The company is actively involved in the production, purchase and
distribution of electric power in Latvia.
On 24 March 1997 Latvenergo and Windau entered into an
agreement called Contract No. 16/97 (the “Contract” or “Contract
No. 16/97”) whereby Windau undertook to build a so called
cogeneration plant in the town of Bauska, which was to produce
electric power and heat on the basis of natural gas, the electric
power to be purchased by Latvenergo and distributed over the
national grid, and the heat to be purchased and distributed by the
Bauska municipality. The plant was built and was ready to start
production on 17 September 1999, but did not start until 28
February 2000 due to a dispute over the purchase price to be paid
by Latvenergo. Since 28 February 2000 the Bauska plant has been
delivering electric power to Latvenergo according to an interim or
settlement agreement of 10 March 2000, at a price which in the
Claimant’s view is less than Windau is entitled to under the
Contract. The price dispute will be further explored below, but in
short the delivery price stipulated in the purchase contracts
entered into by Latvenergo is composed of two elements, the
general tariff for average sales prices per kWh set by regulatory
authorities and a multiplier set by Latvian laws or regulations.
The Claimant contends that Windau was ensured for the first
eight years of operation a multiplier of two (the “double tariff”),
while Latvenergo considers the correct multiplier to be 0.75 of the
tariff.
Appendix 1 -- Nykomb v. Latvia
1. Introduction
2. Jurisdiction
3. General background
4. The legal basis for the claims against
the Republic
5. 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