Arbitration under the ECT and other Investment Protection Treaties - Chapter 6 - Investment Arbitration and the Energy Charter Treaty
Michael Polkinghorne, Partner, White & Case, Paris
Michael Polkinghorne has a broad range of experience in arbitration and litigation in the areas of energy, project finance, construction, infrastructure, telecoms and defense procurement. He has served as counsel and arbitrator in arbitrations conducted under most major institutional rules. While he has covered disputes arising in many different countries, his current practice concentrates on Eastern Europe and the CIS, as well as South and South East Asia, where he lived and worked in the late 1990s. He has significant expertise in the area of foreign direct investment, acting both for and against states. Mr. Polkinghorne also has a significant transactional practice, advising clients in the energy and infrastructure development fields. He has advised a number of petroleum clients on projects in South East Asia, the Russian Federation and North Africa, and has advised the governments of India, Yemen and Mozambique on energy-related matters.
Mr. Polkinghorne is presently a member of the Legal Advisory Task Force of the European Energy Charter Secretariat, which is currently preparing a new edition of the Model Intergovernmental and Host Government Agreements for Cross-Border Pipelines. Admitted to practice in both common law and civil law jurisdictions, Mr. Polkinghorne is presently the alternate Australian member of the ICC’s International Court of Arbitration, where he is also a member of their taskforce on reducing costs in complex arbitrations.
Bernardo M. Cremades, Senior Partner, B. Cremades y Asociados, Madrid
Bernardo Cremades is the Senior Partner of the law firm of B. Cremades y Asociados in Madrid. He is a Professor at the University of Madrid with the distinguished position of Catedrático in the Faculty of Law and the Faculty of Economics.
Professor Cremades is a member of the Madrid Bar and formerly of the Paris and Brussels Bars, specializing in international commercial and investment arbitration. He is President of the Spanish Court of Arbitration, President of the Global Center for Dispute Resolution Research, and a member of the International Council for Commercial Arbitration and the ICC Institute of World Business Law.
Professor Cremades has participated as an attorney, arbitrator or as President of the Arbitral Tribunals in more than 150 arbitral proceedings. He has recently been appointed as an arbitrator in a number of ICSID Investor-State arbitrations.
Richard Happ, Attorney, Luther Rechtsanwaltsgesellschaft mbH
Richard Happ is a lawyer in the dispute resolution department of Luther in Hamburg, Germany. Prior to joining the firm in 2001, he spent his legal clerkship (Referendariat) from 1998 to 2001 in Kiel, Hamburg, Speyer and at the Department of Legal Affairs of the Energy Charter Secretariat in Brussels. From 1996 to 1999, he was a research assistant (wiss. Mitarbeiter) at the Faculty of Law of the University of Kiel. Mr. Happ has published several papers on the topic of investment arbitration, in particular his doctoral thesis on State-Investor Arbitration under Article 26 ECT. He is adjunct lecturer (Lehrbeauftragter) for international commercial arbitration at the University of Kiel.
Originally from Investment Arbitration and the Energy Charter Treaty
As speaker on the last session of this fascinating conference, I promise to remain mindful of the reflections of Lord Mancroft, who once reflected that, "a speech is like a love affair; any fool can start it, but to end it requires considerable skill…”
The problems posed by parallel proceedings are readily selfapparent; the risk of inconsistent decisions, extra time and expense, uncertainty and different places of arbitration with different rules to name but a few. But the issues are at times complex to state, let alone resolve.
When speaking of parallel proceedings, one has to consider a myriad of scenarios. The "traditional" situation involves a dispute being adjudicated under both contractual and treaty-based mechanisms. This problem has, as most of us here today know, done the rounds, and it is not my intention to revisit the Vivendi or SGS decisions today. Suffice to say that the drafters of treaties, through for example, requirements for the exhaustion of remedies or fork in the road provisions - and tribunals have obviously been mindful of the issue.
The problem, however, runs deeper and broader. The growing awareness of the Energy Charter Treaty increases the chances of simultaneous "public" arbitrations, such as under a BIT and the ECT (the Plama dispute is, and the pending Yukos arbitration may be, a case in point). Also, the CME case(s) against the Czech Republic demonstrated the possibility of simultaneous BIT arbitrations, where a treaty allows recourse in respect of indirect investment through another (treaty) state. In that respect, one can note from the CME decisions the potential for inconsistent results.
The analysis should of course start with a definition of the problem we are trying to solve, before we can seriously embark upon finding a solution. It is unlikely that a universal panacea exists, and so we may be looking at different mechanisms for different aspects of the one phenomenon.