The Changing Landscape of International Oil & Gas Arbitration - Chapter 01 - Leading Practitioners’ Guide to International Oil & Gas Arbitration

Author(s): 

James M. Gaitis

Page Count: 

22 pages

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Published: 

August, 2015

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Originally from The Leading Practitioners' Guide to International Oil & Gas Arbitration

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I. INTRODUCTION

Some international arbitration specialists would argue that

international oil and gas arbitration is not a separate legal discipline

that warrants its own treatment. They might observe that although

the subject matter of oil and gas arbitrations differs from that

involved in other arbitrations, the same may be said of arbitrations

involving other industry sectors. In furtherance of their objections,

they might also emphasize that at least as of the publication of this

work, there are no separate arbitral rules designed specifically for use

in arbitrations involving oil and gas subject matter and, with one

nascent exception, that no separate arbitral institutions exist solely for

that purpose. And yet the fact is that there has been considerable

movement toward recognizing oil and gas arbitration, or at least its

broader cousin—international energy arbitration—as a separate

discipline and, hence, the creation of the Energy Charter Treaty

(ECT) and, more recently, the International Centre for Energy

Arbitration in Scotland.

 

 

Despite such debates, it is clear that there is ample reason for

treating international oil and gas arbitration as a separate and distinct

subject, including the fact that the increasing number of investorstate

and commercial oil and gas arbitrations, and the magnitude of

the monetary claims involved in those arbitrations, has given rise to a

sophisticated and experienced community of oil and gas arbitration

practitioners who can rightly claim to work in a highly specialized

field. And that field is transitioning at a remarkably rapid pace.

 

 

Evolving influences and developments in the field of

international oil and gas arbitration take many forms. Some relate

specifically to the variables that endlessly cause change in the milieu

in which the oil and gas industry operates: constant and inevitable

advancements in oil and gas technology, unpredictable fluctuations in

the marketplace for petroleum products, enhanced public attention to

environmental and social concerns, new governmental regulations

and political objectives that often are more reactive than prescient,

increasingly complicated changes in contracting practices and risk

allocation, changes in corporate personalities, and so on. Other

influences and developments affecting international oil and gas

arbitration are associated with the ongoing proliferation of

multilateral and bilateral investment treaties (BITs) and, just as

important, the rapidly growing body of arbitral jurisprudence and

scholarly commentary relating to those treaties. And still others relate

to the establishment of an increasing number of arbitral institutions,

whose rules, too, have evolved to address a broad variety of

procedural and practical concerns.