Interplay of the Energy Charter Treaty With Other Treaties - Chapter 4 - Investment Protection and The Energy Charter Treaty

Heather Van Slooten Walsh is an Attorney-Adviser of the NAFTA Arbitration Division in the Office of the Legal Adviser for the U.S. Department of State.

Ms. Menaker and Ms. Walsh represent the United States in investor-State arbitrations under the NAFTA.

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Originally from Investment Protection and The Energy Charter Treaty

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I Introduction

In the 21st century the rest of the world has come to regard Russia and the present and former members of the Commonwealth of Independent States (the "CIS") as increasingly important sources of energy for other countries, particularly in Europe, inter alia, against the backdrop of the seemingly permanent political turmoil in the Middle East.

The Russian Ministry of Industry and Energy has estimated that the extraction of oil until 2015 will increase to 530 million tonnes per year. Even more conservative estimates show that Russian oil production will be substantial in the near future.

Natural gas is becoming increasingly important for the world’s energy needs. Russia controls an estimated 31 per cent of global gas reserves which means that Russia occupies a dominant position in this market. By 2015 Russia expects to produce no less than 740 bcm per year. Presently Russia supplies Europe with approximately 26 per cent of its gas needs. Being the leading gas producer in the world, Russia would be able to influence gas prices on export markets by increasing or curtailing exports. This has caused concern in many quarters in Europe. Is Russia a reliable supplier of energy -- primarily oil and gas?

While Russia has indeed been a reliable supplier of energy in the past and seems to show all the signs of remaining one in the future, to be dependent on Russia for energy supplies is to catapult oneself -- i.e., the EU -- from the world of business transactions into the world of politics. International business transactions involving oil and gas are not immune from political constraints. They do not live in splendid isolation from geopolitics and geostrategy. On the contrary. These aspects are very often intimately linked with each other.

This paper will examine the legal dimension of the oil and gas relationship between the EU and Russia. In this paper, that relationship is referred to as the EU-Russia Energy Dialogue.

In this paper, the focus will be on the international instruments existing between the EU and Russia -- i.e., the Agreement on Partnership and Co-operation and the Energy Charter Treaty. In the final section, an attempt is made to predict what lies ahead as far as the legal dimension of the energy dialogue is concerned.

Table of Contents:

Chapter 4 -- Interplay of the Energy Charter Treaty with other treaties

Part I -- The role of the Energy Charter Treaty in the context of the European Union and Russia

            Kaj Hobér

                        I           Introduction

                        II          The partnership and co-operation agreement

                        III        The energy dialogue

                        IV        The Energy Charter Treaty

                        V         What lies ahead?

                        VI        Concluding remarks

Part II -- The Energy Charter Treaty and U.S. Investment Treaties: An overview of key contrasts

            Andrea J. Menaker and Heather Van Slooten Walsh

                        I           Introduction:

                        II          Scope

                        III        Investment protection provisions

                        IV        Dispute resolution provisions

                        V         Conclusion