Originally from Investment Treaty Arbitration and International Law Volume 7

“Where oil is first found is, in its final analysis, in the minds of men” -- Wallace Pratt

I. INTRODUCTION

The pivotal role that energy plays in everyday life cannot be overstated. From the first factory worker who arrives to turn on the lights every morning to cooking dinner at the end of the day, energy plays a part in every aspect of every business or personal undertaking. The title of this Paper is “The Energy Sector, Investment Arbitration, and the ECT: Carving out a Special Regime?” The title, therefore, has four components to it: (i) a special regime; (ii) the energy sector; (iii) the Energy Charter Treaty (“ECT”); and (iv) investment arbitration. The central premise of this Paper is that the energy sector constitutes a special regime in international law and this special regime (including investment arbitration) is effectively addressed in the ECT.

Towards this end, the Paper has been divided into the following parts: In Part II, I examine the situations in which a special regime can be created under international law. This provides a basic framework for the analysis that follows in the subsequent sections. In Part III, I analyze whether dispute resolution in the energy sector warrants a special regime such as that created by the ECT. In Part IV, I question whether in fact the ECT addresses the unique features of the energy sector and, in Part V, I focus on whether other alternatives can address these energy sector features more effectively than the ECT. The final prong in the analysis is to test the conclusions against the background of general trends in international law.