State Responsibility under the ECT and other Investment Protection Treaties - Chapter 5 - Investment Arbitration and the Energy Charter Treaty
Karl-Heinz Böckstiegel, Independent Arbitrator
Karl-Heinz Böckstiegel is a Member of Law Faculty of University of Cologne as Professor Emeritus. Professor Böckstiegel is also the President of the International Law Association (ILA), and the German Association for International Law, and has practiced extensively as parties’ counsel, mediator, and as arbitrator and president of arbitration tribunals in many national and international arbitrations of the ICC, ICSID, NAFTA, AAA, UNCITRAL and others.
Professor Böckstiegel has authored twelve and edited thirty-three books. He has also authored over three hundred articles, especially on the protection of foreign investments, international commercial contracts, state contracts, international legal procedure in civil and commercial matters, expropriation and nationalization measures, international commercial arbitration, and other fields of international business law, as well as on liability in aviation, law of airports and air traffic control, commercial space activities, manned space flight, environmental protection in space, settlement of space law disputes, and other fields of air and space law.
Kaj Hobér, Partner, Mannheimer Swartling Advokatbyrå, Stockholm
Kaj Hobér is a partner in the law firm Mannheimer Swartling, Stockholm and Professor of East European Commercial Law at Uppsala University. He has been heavily involved in the legal aspects of doing business in Eastern Europe and the former Soviet Union for the last 25 years. His arbitration experience includes representing both Eastern and Western European, American and Russian parties as well as parties from developing countries in international arbitrations. He has also been involved in numerous oil and gas arbitrations, relating primarily to Northern Africa, the Middle East and the former Soviet Union. He has acted as counsel and arbitrator (including chairmanships) in more than 300 international arbitrations, including representation of the claimant in the first ECT award, as well as involvement in many other investment arbitrations. He is a member of the board of the Arbitration Institute of the Stockholm Chamber of Commerce, the International Arbitration Club (London) and a member of the ICC Institute of International Business and Law (corresponding member).
Anatoly Martynov, Director General of the Centre for Trade Policy and Law, Moscow
Anatoly Martynovhas worked in the Ministry of Foreign Trade of the USSR, and in the Ministry of Foreign Economic Relations of Russia where he headed the Legal and Treaty Department. Mr. Martynov participated in the elaboration of the drafts of international conventions, guides, and model laws within the framework of UNCITRAL, UN European Economic Commission, the Hague Conference on Private International Law, and UNIDROIT, as well as in the negotiations on the Energy Charter Treaty and on the Agreement on Partnership and Cooperation between Russia and European Communities. Currently, Mr. Martynov provides legal advice to the Russian delegation at the negotiations on Russia’s accession to the World Trade Organization.
Originally from Investment Arbitration and the Energy Charter Treaty
It was with great pleasure that I accepted the invitation to participate in this conference. First of all, it is nice to be back in beautiful Stockholm where I have had a number of meetings and arbitrations over the years. Then, the Energy Charter Treaty presents a new procedural and substantive framework for foreign investment and related dispute settlement which is both of high practical relevance and intellectually challenging.
The topic of our session at the Conference and of this chapter, i.e. state responsibility regarding foreign investment, has been of high practical relevance throughout the history of international law and the subject of a great number of publications. Personally, it has occupied me from my early days when I wrote my doctoral dissertation in Geneva in 1961 and, already at that time, I had to study the respective work of the International Law Commission. It still occupies me today in my arbitrations, and I still have to take into account what is now the Final Version of the ILC Draft Articles.
For this short introduction, I am subject to two limitations:
First, it is obviously neither possible nor is it my function as chairman to go into any details of our topic. Our Rapporteur and our Commentators will do so on the basis of their wide experience. All I plan to do is to present a few remarks putting it into context which may be helpful for further discussion.
Second, as some know, I am presently involved as an arbitrator in several pending disputes which deal with a number of aspects of our topic. Therefore, at a time when challenges are easily raised, I will have to skip personal views on such aspects in this introduction.
However, let me at least try to put our discussion into the relevant framework regarding the applicable sources of the law for our topic:
Our primary source of law of concern today is the Energy Charter Treaty ("ECT") itself. Indeed, I suggest we focus on the aspects of state responsibility provided for in the ECT and whether and to what extent they present either re-statements or new rulings compared to other sources of international law.
But this exercise can only be done by referring to and using the codification and implementation of other treaties, because Article 16 ECT provides that both prior and subsequent international agreements entered into by two or more Contracting Parties shall be taken into account insofar as they contain provisions more favourable to the investor or investment.
This provision becomes relevant particularly for the by now several thousand Bilateral Investment Treaties ("BITs"), and similar bilateral instruments of international law containing procedural or substantive provisions regarding foreign investment.