AMTO case presentation - Chapter 4 - Energy Dispute Resolution: Investment Protection, Transit and the Energy Charter Treaty
Sergei Voitovich has been a partner at Grischenko & Partners since 1993. For a number of years he has been an Associate Professor at the Kyiv University, specializing in international economic law. In 1993-1994 Mr. Voitovich advised the OECD on the investment laws of selected member states of the Commonwealth of Independent States. From 1997 to 2001, Mr. Voitovich was a member of the Chamber of Independent Experts on Foreign Investment at the President of Ukraine, where he participated in four panels as a panel member.
Dmitri Grischenko is the Founder and Managing Partner at the Law and Patent Offices of Grischenko & Partners, since 1992. He graduated from New York University Law School, L.L.M. in 1995.
AMTO v. Ukraine1 was the first ECT case in which Ukraine was involved. AMTO also was the first ECT case won by a respondent State. The Final Award in AMTO2 contains a number of findings which will undoubtedly affect the analysis of the ECT by future arbitral tribunals.
Our brief presentation on this case will focus on three issues which are of particular interest for us, as co-counsel for Ukraine. Certainly, these are our personal views, and under no circumstances may they be attributed to Ukraine.
I INTERPRETATION BY THE TRIBUNAL OF THE LANGUAGE “ASSOCIATED WITH AN ECONOMIC ACTIVITY IN THE ENERGY SECTOR”
One of Ukraine’s jurisdictional objections in this case was that AMTO’s shares in the Ukrainian subsidiary company EYUM-10, alleged by AMTO to constitute a qualified “Investment” under the ECT, did not in fact constitute such an investment, since they were not “associated with an Economic Activity in the Energy Sector”, as required by Article 1(6) of the ECT. Although the AMTO tribunal dismissed this objection, as such, it made an important interpretation of the final part of Article 1(6), which is consonant, to a certain extent, with Ukraine’s argument.