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
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Investments and Investors Covered by the ECT and other Investment Protection Treaties
Antonio R. Parra, Emmanuel Gaillard, Stephen Jagusch, and Anthony Sinclair
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.
Remarks by Judge Stephen Schwebel
Editor's Preface
List of Contributors
Chapter 1 -- Introduction to the Energy Charter Treaty (ECT)
Introduction
Dr. Hans Corell
Part 1 -- The Energy Charter Treaty: More Than a MIT
Graham Coop
Part 2 -- The Dispute Settlement Mechanisms of the Energy Charter Treaty
Laurent Gouiffès
Chapter 2 -- Investments and Investors Covered by the ECT and other Investment Protection Treaties
Introduction
Antonio R. Parra
Part 1 -- Investments and Investors Covered by the Energy Charter Treaty
Emmanuel Gaillard
Part 2 -- The Limits of Protection for Investments and Investors under the Energy Charter Treaty
Stephen Jagusch & Anthony Sinclair
Chapter 3 -- The Concept of Expropriation under the ECT and other Investment Protection Treaties
Introduction:
Sergei N. Lebedev
Part 1 -- Rapport: The Concept of Expropriation under the ECT and other Investment Protection Treaties
Christoph H. Schreuer
Part 2 -- Comments on the Rapport
I -- Indirect Expropriation and the Right of the Governments to Regulate Criteria to Articulate the Difference
Katia Yannaca-Small
II -- The Distinction Between Lawful and Unlawful Expropriation
Audley Sheppard
Chapter 4 -- The Relationship Between Contractual Claims and Claims under the ECT and other Investment Protection Treaties
Introduction: Treaty versus Contract Claims
Gabrielle Kaufmann-Kohler
Part 1 -- Contract Claims under the Energy Charter Treaty's Umbrella Clause: Original
Intentions versus Emerging Jurisprudence
Thomas W. Wälde
Part 2 -- Multiple Judicial Proceedings and the Energy Charter Treaty
Christer Söderlund
Chapter 5 -- State Responsibility under the ECT and other Investment Protection Treaties
Introduction: Applicable Law to State Responsibility under the Energy Charter Treaty and other Investment Protection Treaties
Karl-Heinz Böckstiegel
Part 1 -- State Responsibility and Investment Arbitration
Kaj Hobér
Part 2 -- State Responsibility under the Energy Charter Treaty and other Investment Protection Treaties
Anatoly S. Martynov
Chapter 6 -- Arbitration under the ECT and other Investment Protection Treaties
Introduction: Parallel Proceedings: The Issues and (Where Are?) the Solutions
Michael Polkinghorne
Part 1 -- Parallel Arbitration Tribunals and Awards
Bernardo M. Cremades
Part 2 -- The Nykomb Case in the Light of Recent ICSID Jurisprudence
Richard Happ
Appendix -- Awards Rendered under ECT
Appendix 1 -- Nykomb v. Latvia
1. Introduction
2. Jurisdiction
3. General background
4. The legal basis for the claims against
the Republic
5. Assessment of losses or damages
6. Allocation and allowability of costs
7. Arbitral award
Appendix 2 -- Petrobart v. Kyrgyzstan
I. The contract
II. Relevant facts
III. The Foreign Investment Law and proceedings regarding that law
IV. The Energy Charter Treaty
V. Proceedings
VI. Claims
VII. Grounds and arguments
VIII. Reasons
Appendix 3 -- Plama v. Bulgaria
(Decision on Jurisdiction)
I. Procedure
II. Background facts
III. The submissions of the parties on jurisdiction
IV. Examination of the parties’ submissions
V. The decision
Index
Appendix Topics on CD-ROM Include:
ECT and Related Instruments
SCC Rules
ICSID Rules
UNCITRAL Arbitration Rules