Provisional application of the Energy Charter Treaty: the conundrum - Chapter 11 - Energy Dispute Resolution: Investment Protection, Transit and the Energy Charter Treaty
Michael Polkinghorne has a broad range of experience in arbitration and litigation in the areas of energy, project finance, construction, infrastructure, telecoms and defense procurement. He has served as counsel and arbitrator in arbitrations conducted under most major institutional rules and is the Australian member of the International Court of Arbitration of the ICC, where he is a member of the ICC Taskforce on arbitrations involving state entities. He has covered disputes arising in many different countries, and has significant expertise in the area of foreign direct investment and acting for and against States. Mr. Polkinghorne also has a significant transactional practice, advising clients in the energy and infrastructure development fields. He has advised a number of petroleum clients on projects in South East Asia, the Russian Federation, India and North Africa.
Laurent Gouiffès is a Partner in the International Arbitration practice at Hogan Lovells, Paris. He specialises in litigation, especially international arbitration and technological and energy related disputes. Mr. Gouiffès has acted as arbitrator and as counsel to parties in numerous arbitrations, in particular under the aegis of the ICC, LCIA, ICSID, UNCITRAL and the Chamber of Arbitration of Milan. His work in technological and energy related disputes has focused on the aerospace, oil and gas, electricity, nuclear and mining sectors.
Since speaking at the conference at which this paper was delivered, we have learned, with mixed feelings of concern and curiosity, that the tribunal in the Yukos case has delivered its decision on jurisdiction.1 While the writers will assert – with no conviction whatsoever – that the timing of the decision was doubtless spurred on by our intervention in Brussels, we nevertheless hope that some of the following will remain of interest.2
I PROVISIONAL APPLICATION ISSUES
“… a riddle wrapped in a mystery inside an enigma”3 The idea that a State could apply an international treaty before having ratified it is somewhat paradoxical, but the phenomenon has been seen on repeated, and notable, occasions. One has accordingly witnessed the development of a complex framework aimed at regulating just when and how provisional application can arise (1.1). What is particularly striking, perhaps, with regard to the Energy Charter Treaty (“ECT”) is the sheer scope of its provisional application, reflecting the protective aims of the Treaty itself (1.2). The most complex and, therefore, controversial, issue with regard to its provisional application, however, is its compatibility with the domestic law of its signatories (1.3).