The Concept of Expropriation under the ECT and other Investment Protection Treaties - Chapter 3 - Investment Arbitration and the Energy Charter Treaty
Sergei N. Lebedev, President, Maritime Arbitration Commission at the Chamber of Commerce and Industry of the Russian Federation, Moscow
Sergei Lebedev has been the Chairman of the Maritime Arbitration Commission, and also a member of the Presidium of the International Commercial Arbitration Court at the Russian Chamber of Commerce and Industry. He sits on the panel of several foreign arbitral institutions and has acted as arbitrator in more than 600 international cases in Russia and abroad. He has participated in the work of international organizations including UNCITRAL (since 1970), the Council of Mutual Economic Assistance, International Council for Commercial Arbitration (Honorary Vice-President), UN Compensation Commission (panel member), Economic Commission for Europe, the Hague Conference of Private International Law.
Christoph H. Schreuer, Professor of Law University of Vienna, School of Law, Department of International Law and International Relations, Vienna
Christoph Schreuer is a graduate of the Universities of Vienna, Cambridge and Yale. He has spent most of his academic career at the Department of International Law of the University of Salzburg, Austria. From 1992 to 2000, he was the Edward B. Burling Professor of International Law and Organization at the Paul H. Nitze School of Advanced International Studies (SAIS) of the Johns Hopkins University in Washington, D.C. Since October 2000, he has served as Professor of International Law at the University of Vienna, Austria. Professor Schreuer is also a member of the ICSID Panel of Conciliators and Arbitrators, and will serve from November 2002 to November 2008. Over an academic career that has spanned more than thirty years, Professor Schreuer has published numerous articles and several books in the field of international law.
Katia Yannaca-Small, Legal Advisor to the Investment Division, Directorate for Financial and Enterprise Affairs in the OECD, Paris
Since 2001, Katia Yannaca-Small has been responsible for analytical work on all legal issues related to international investment agreements, in particular, new developments in investor-state dispute settlements. She manages the related activities of the OECD Investment Committee, and proposes issues for discussion and possible policy development. Prior to this work, Ms. Yannaca-Small worked on Foreign Direct Investment reviews of Central and Eastern European countries, in particular on the examination of the legal framework for and policies towards foreign investment. She also worked on issues of corporate responsibility and on the OECD Guidelines for Multinational Enterprises. She was responsible for the analytical and organisational support of OECD work on corruption during the period leading to the OECD Anti-Bribery Convention.
Audley Sheppard, Partner, Clifford Chance LLP, London
Audley Sheppard is a Partner in the International Law and International Arbitration Groups of Clifford Chance LLP in London. He has considerable experience in dispute settlement under Bilateral Investment Treaties. He has acted as counsel in BIT arbitrations for States (including the Czech Republic and the Republic of Hungary) and investors (including arbitrations against India arising from the Dabhol power project). He is on the Advisory Board of the Investment Treaty Forum of the British Institute of International and Comparative Law, and a member of the International Law Association Committee on Investment Protection. He has over eighteen years’ experience specialising in the resolution of disputes arising out of complex infrastructure projects and other international investments. He has conducted many ICC, LCIA, AAA, UNCITRAL and ICSID arbitrations and regularly sits as an arbitrator.
Mr. Sheppard is co-chair of the IBA Arbitration Committee for the 2006-2007 term, Rapporteur of the International Law Association Arbitration Committee, and a member of the Editorial Board of the International Arbitration Law Review and of Business Law International. He is also a member of the ICC Commission on International Arbitration and a fellow of the Chartered Institute of Arbitrators.
Originally from Investment Arbitration and the Energy Charter Treaty
The concept of expropriation is a complex one, which has given rise to a wide debate. As Professor Schreuer notes in his Rapport expropriation is not illegal per se, however, certain conditions must be met. In this introduction, I would like to limit myself to some brief remarks on this very important concept, in particular in the context of the Energy Charter Treaty ("ECT").
It is generally accepted that national law guarantees that individuals cannot be deprived of their property by government action without certain conditions being met. For example, in France, this guarantee is provided for in the 1789 Déclaration des Droits de l’Homme et du Citoyen, which states:
"La propriété étant un droit inviolable et sacré, nul ne peut en être privé, si ce n’est lorsque la nécessité publique, légalement constatée, l’exige évidemment, et sous la condition d’une juste et préalable indemnité."1
Another example can be found in the Constitution of the United States of America, which provides this guarantee in its Bill of Rights, stating, among its restrictions on government action: "nor shall private property be taken for public use without just compensation."