Originally from Energy Dispute Resolution: Investment Protection, Transit and the Energy Charter Treaty

I INTRODUCTION

I have been asked to comment on the excellent presentations made during the second day of the conference. My comments will focus on three aspects of the investment protection framework provided by the Energy Charter Treaty (“ECT” or “Treaty”): provisional application of the ECT, denial of benefits under Article 17(1), and the implications raised by recent developments in the European Union following the Lisbon Treaty. All three topics are particularly pertinent and worthy of discussion and indeed were discussed extensively at the conference. Since the conference, new developments have highlighted the significance of these topics. For example, the public release of the Yukos tribunal’s Interim Award on Jurisdiction and Admissibility in February 20101 has shed more light on the debate relating to the provisional application of the ECT. Further, communications made by the EU in July 2010 on transitional arrangements for bilateral investment treaties (“BITs”) between EU member states and third countries and on the development of a European international investment policy, and the attendant efforts by several EU member states to terminate their intra-EU BITs, have also intensified the debate about the future of BITs and the ECT.