Investments and Investors Covered by the ECT and other Investment Protection Treaties - Chapter 2 - Investment Arbitration and the Energy Charter Treaty
Antonio R. Parra, Visiting Professor, Faculty of Laws, University College London
Antonio R. Parra is Visiting Professor, Faculty of Laws, University College London. He is also Secretary General of the International Council for Commercial Arbitration and Editor-in-Chiefof the ICSID Review - Foreign Investment Law Journal.
From 1999 to 2005, Professor Parra was Deputy Secretary-General for the International Centre of Investment Disputes (ICSID), and from 1990 to 1999 he was Legal Adviser, ICSID. His earlier positions include Senior Counsel, ICSID; Senior Counsel, World Bank; Counsel, World Bank and Assistant Legal Counsel, OPEC Fund for International Development.
Emmanuel Gaillard, Partner, Head of the International Arbitration Group, Shearman & Sterling LLP, Paris; Professor of Law, University of Paris XII
Emmanuel Gaillard heads Shearman & Sterling’s International Arbitration Group. He has represented major corporations, governments and government-owned entities in over 200 international arbitration cases (with emphasis on oil and gas, foreign investment, construction, telecommunications, mergers and acquisitions and environmental disputes). His litigation experience includes a broad range of commercial cases before the French courts, as well as extensive work on financial and securities litigation matters. He has also acted as sole arbitrator, party-appointed arbitrator or chairman in more than 40 international arbitrations.
Mr. Gaillard is a Professor of Law and teaches international arbitration and private international law at the University of Paris XII. He has published extensively on international arbitration and private international law.
Stephen Jagusch, Partner, Allen & Overy LLP, London
Stephen Jagusch is a partner at Allen & Overy LLP specialising in commercial and investment treaty arbitration. He has acted as advisor and advocate in dozens of ad hoc and institutional international arbitrations conducted in many countries across the world and subject to a wide variety of governing substantive and procedural laws. A great many of his cases have been for or against sovereign states or substantial multinational organisations, and in recent years he has become a recognised expert in the field of ICSID arbitration and disputes arising under bilateral or multilateral investment treaties. In addition to acting as adviser and advocate, he is regularly appointed as sole arbitrator, chairman or co-arbitrator in international arbitrations, both institutional and ad hoc. Mr. Jagusch has lectured extensively on international arbitration around the world.
Anthony Sinclair, Associate, Allen & Overy LLP, London
Anthony Sinclair is an associate in the International Arbitration Group of Allen & Overy LLP, and a Barrister and Solicitor of the High Court of New Zealand. He has acted in ICC, UNCITRAL and ICSID arbitration proceedings, with notable experience in the latter. Mr. Sinclair has acted for CDC Group PLC, successfully defending an annulment application brought by the Republic of Seychelles regarding an award upholding sovereign guarantees, and presently represents the United Arab Emirates in another ICSID annulment proceeding. He has acted in UNCITRAL arbitration proceedings in claims against an African state and presently represents a Dutch investor in a BIT claim against the Czech Republic. Mr. Sinclair regularly advises on issues of public international law focusing on the substantive and procedural issues of investor-state arbitration under the 1994 Energy Charter Treaty and other bilateral investment protection treaties.
Originally from Investment Arbitration and the Energy Charter Treaty
As an introduction to the comprehensive paper by Emmanuel Gaillard and the comment by Stephen Jagusch and Anthony Sinclair, I would like to limit myself to two observations.
As you are no doubt aware, the Energy Charter Treaty (“ECT”) provides for the submission of investment disputes to arbitration under another multilateral treaty. The other treaty is, of course, the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which established the International Centre for Settlement of Investment Disputes (“ICSID”).
In these cases, the dispute concerned must qualify for coverage, not only under the ECT, but also under the ICSID Convention. That is to say, in addition to satisfying the ECT criteria that Professor Gaillard explains in his paper, the parties must also be an ICSID Convention Contracting State on the one hand, a national of another ICSID Contracting State on the other hand, and their dispute must be a legal dispute arising directly out of what is an investment for ICSID Convention as well as ECT purposes.
My first observation is simply that although the fit between the ECT and the ICSID Convention in this regard is very good, it is not perfect.
Like many other treaties with provisions on the promotion and protection of investments, the ECT has a broad, asset-based definition of covered investments. At least, if read literally, the definition might extend to sales transactions that may not qualify as investments for the purposes of the ICSID Convention.
Under the ECT, to take a second example, a natural person who is not a national of a State party to ECT may nevertheless qualify as an investor of that State if he or she permanently resides in the State. But the coverage of the ICSID Convention extends only to natural persons who are nationals of a Contracting State.