Dr. Richard Happ is a partner in the dispute resolution section of Luther law firm in Hamburg, Germany. He specializes in investment protection and investment arbitration. He is a national and international arbitrator with both domestic and cross-border litigation experience. Mr. Happ has been with the law firm of Luther Rechtsanwaltsgesellschaft mbH, Hamburg/Germany since 2001. He received the Doctor of Laws at the University of Kiel/Germany in 2000.
Jan Asmus Bischoff is an associate attorney (Rechtsanwalt) at Luther Rechtsanwaltsgesellschaft, Hamburg in the field of international dispute settlement.
This paper1 discusses the role and responsibility of the European Union (“EU”)2 under the Energy Charter Treaty (“ECT”) with a view of finding out whether the EU is special and different from other Contracting Parties for purposes of arbitral proceedings.
The analysis will start (I) with an analysis of the role of EU law in ECT arbitral proceedings. The paper will then discuss the following issues: (II) the role of the EU as a “Regional Economic Integration Organisation” (“REIO”), (III) the relevance, if any, of the ECT having been concluded as a “mixed agreement” under EU law, (IV) the principles of responsibility applicable in relation between an investor and the EU, (V) where to invoke the responsibiltiy, i.e. whether arbitration proceedings against the EU are possible, (VI) by whom the responsibility can be invoked (only non-EU investors or also EU investors?), (VII) whom to sue (EU, Member States or both?), before (VIII) concluding the analysis.