Introductory Remarks - Provisional Application: Rien ne Dure Comme le Provisoire - Energy Dispute Resolution: Investment Protection, Transit and the Energy Charter Treaty
James Crawford LLD, FBA, SC is Whewell Professor of International Law, University of Cambridge and a Fellow of Jesus College, Cambridge. He also holds a Research Chair of Law at Latrobe University, Victoria, Australia. From 1995 to 2010 he was Director of the Lauterpacht Centre for International Law, University of Cambridge. He previously held chairs at Adelaide and Sydney. He is a Senior Counsel (NSW) and a member of the English bar, practicing from Matrix Chambers. He was the first Australian member of the United Nations International Law Commission and was responsible for the ILC’s work on the International Criminal Court (1994) and for the second reading of the ILC Articles on State Responsibility (2001). In addition to scholarly work on statehood, collective rights, investment law and international responsibility, he has appeared frequently before the International Court of Justice and other international tribunals, and is engaged as expert, counsel and arbitrator in international arbitration.
The provisional application of the Energy Charter Treaty, forming the subject of Session 3 of the Energy Dispute Resolution Conference, is provided for in ECT Article 45,1 which is an instance of the option of provisional measures provided for in Article 25 of the Vienna Convention on the Law of Treaties.2 It must be stressed at the outset that international law does not contain a general presumption in favour of provisional application of treaties nor, for that matter, of their retroactive application. The rule is that a treaty enters into force once the consent to be bound by it is expressed by ratification, acceptance, approval or accession. It is only the parties’ express consent which can extend the operation of the treaty beyond this operational frame ratione temporis. And indeed, the Contracting Parties to the Energy Charter Treaty included a provision to that effect, which has since given rise to controversy and extensive interpretation by a number of arbitral tribunals, in Petrobart v. Kyrgyzstan,3 Kardassopoulos v. Georgia4 and most recently, by the tribunal in the three Yukos cases.5