INVESTMENT PROTECTION AND THE ENERGY CHARTER TREATY

Transcription

1 INVESTMENT PROTECTION AND THE ENERGY CHARTER TREATY Graham Coop and Clarisse Ribeiro Editors J P JurisNet, LLC

2 Questions About This Publication For assistance with shipments, billing or other customer service matters, please call our Customer Services Department at: To obtain a copy of this book, call our Sales Department: Fax: Toll Free Order Line: (United States & Canada) See our web page about this book: COPYRIGHT 2008 by JurisNet, LLC All rights reserved. No part of this publication may be reproduced in any form or by any electronic or mechanical means including information storage and retrieval systems without permission in writing from the publisher. All Rights Reserved Printed in the United States of America ISBN JurisNet, LLC 71 New Street Huntington, New York USA

3 TABLE OF CONTENTS Editors...ix Contributors...xi Introductory Remarks... xxvii Ana Palacio... xxvii André Mernier...xxx Ulf Franke... xxxiii Introduction...xxxv Anne Houtman...xxxv The negotiation of the Energy Charter Treaty Craig S. Bamberger...xxxix Chapter 1 - Investment dispute resolution and the Energy Charter Treaty... 1 Part I Access to dispute resolution mechanisms under Article 26 of the Energy Charter Treaty Juliet Blanch, Andy Moody and Nicholas Lawn... 1 I Introduction... 1 II Jurisdictional requirements under Article 26(1) ECT... 2 III Alternative venues for dispute resolution (Article 26(2) ECT)... 6 IV International arbitration unconditional consent to arbitrate... 6 V International arbitration options... 7 VI Key points: a comparison of the arbitration options... 8 iii

4 iv TABLE OF CONTENTS VII Access to dispute resolution mechanisms under Article 26 ECT: The statistics Part II Denial of advantages under Article 17(1) Stephen Jagusch and Anthony Sinclair I Introduction II III Interpretation of the meaning of third state Interpretation of the meaning of substantial business activities IV Decisions on the application of Article 17(1) V Comparative state practice on denial of benefits VI Prior notification? VII Effect of the denial: jurisdiction or admissibility? VIII Conclusion Part III The provisional application of the Energy Charter Treaty W. Michael Reisman Chapter 2 Selected standards of treatment available under the Energy Charter Treaty Part I Fair and equitable treatment (FET): interactions with other standards Christoph H. Schreuer I Introduction II FET and constant protection and security III FET and unreasonable or discriminatory measures IV FET and customary international law V FET and the observance of contracts... 89

5 TABLE OF CONTENTS v VI FET and the observance of domestic law VII FET and expropriation VIII Conclusion Part II The scope of Most Favored Nation treatment under the Energy Charter Treaty Paul D. Friedland I A sampling of treaties on the subject of MFN clauses in relation to dispute resolution II ICSID case law III The ECT s MFN and dispute resolution clauses Part III Tax arbitration and investor protection William W. Park I Introduction II The Matryoshka III The nature of tax measures IV The architecture of investment protection V A tale of two cases: Occidental and Encana VI Abusive taxes VII Conclusion: The art of taxation Appendix: Illustrative investment conventions Chapter 3 Questions and observations: interactive session Part I The Energy Charter Treaty and corporate acquisition Thomas W. Wälde and Walid Ben Hamida I The arbitrability of pre-investment (investment-admission) disputes under the ECT

6 vi TABLE OF CONTENTS II Can a public tender offer qualify as an existing Investment rather than a pre-investment activity? III The applicability of the ECT to the relations between EC member states Part II - How does the so-called fork-in-the-road provision in Article 26(3)(b)(i) of the Energy Charter Treaty work? Why did the United States decline to sign the Energy Charter Treaty? Emmanuel Gaillard Chapter 4 Interplay of the Energy Charter Treaty with other treaties Part I The role of the Energy Charter Treaty in the context of the European Union and Russia Kaj Hobér I Introduction II The partnership and co-operation agreement III The energy dialogue IV The Energy Charter Treaty V What lies ahead? VI Concluding remarks Part II The Energy Charter Treaty and U.S. Investment Treaties: An overview of key contrasts Andrea J. Menaker and Heather Van Slooten Walsh I Introduction: II Scope III Investment protection provisions IV Dispute resolution provisions V Conclusion

7 TABLE OF CONTENTS vii The Energy Charter Treaty: What Lies Ahead? Graham Coop I Change or development of the ECT II New interpretations of the ECT III Application of the ECT IV Conclusion Index...Index-1

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