David Herlihy is Counsel in Skadden’s International Arbitration Group. He has acted in a wide range of significant international arbitrations, including disputes conducted under the Arbitration Rules of the ICC, LCIA, ICSID, ICDR and UNCITRAL. LL.M., New York University School of Law (John F. Kennedy Memorial Scholar) B.C.L., The National University of Ireland, (First Class Honours, College Scholar).
The Kardassopoulos case will be remembered, foremost, as the first decision to hold a respondent state to account despite claims that its domestic law prohibited the provisional application of the 1994 Energy Charter Treaty (the “ECT” or “Treaty”).1 In a unanimous decision of 6 July 2007, an ICSID Tribunal upheld its jurisdiction to decide whether or not Georgia had expropriated the Greek claimant's interest in an exclusive concession to transport oil and gas via pipelines across the former Soviet republic of Georgia. The unique feature of this case was its timing; it involved an expropriation implemented through executive decrees passed in 1996, i.e. following signature of the ECT by Georgia and Greece but prior to the entry into force of the Treaty. The facts thus offered the perfect opportunity to test the meaning and effect of the Contracting Parties' agreement to apply the Treaty provisionally pending its entry into force in April 1998.
But the Kardassopoulos case is as much about geography as it is about timing. Nestled between the Caspian Sea and Black Sea, Georgia lies along one of the world’s most ancient trading routes: the myriad of trade arteries which linked China across Central Asia, India and Persia to the Mediterranean: a lifeline of trade, commerce and information subsequently coined the “Silk Road”.