Investment Arbitration and the Energy Charter Treaty

Price: $150.00 684 pages. 1 Hardcover Volume. Index. CD-ROM. Published June 2006.
ISBN-13: 978-1-929446-94-0 / ISBN-10: 1-929446-94-2

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Table of Contents

About the Book:
Investment Arbitration and the Energy Charter Treaty provides the first authoritative analysis of investment arbitration and its relationship to the Energy Charter Treaty (ECT). This book is based on a conference co-organised in Stockholm on 9 and 10 June 2005 by the Energy Charter Secretariat and the Arbitration Institute of the Stockholm Chamber of Commerce and reflects the growing importance of investment arbitration for international commerce. This was the first international conference specifically addressing questions of investment arbitration in relation to ECT and this publication will no doubt contribute to raising awareness about the Treaty and its provisions. To date 51 countries have ratified the ECT. The Energy Charter Treaty is a treaty of great importance in that it provides for direct arbitral recourse in settlement of disputes that arise under the Treaty. Many legal problems and issues to which the interpretation and application of the Treaty may give rise are searchingly explored in the Chapters of Investment Arbitration and the Energy Charter Treaty. These chapters have been prepared by scholars of great distinction who include advocates of exceptional ability and reasoning. Their analytical skills in dissecting salient issues posed by the Energy Charter Treaty and investment arbitration will be apparent to the reader.

The Energy Charter Treaty has great significance in the investment arbitration world. This emerging interest came as a result not only of the arbitral awards recently rendered under the ECT, but also of recently initiated and highly visible arbitral proceedings. In relation to the investment chapter of the Treaty, there have already been a number of cases brought by private investors to international arbitration. The first award issued under the Energy Charter Treaty was rendered under the auspices of the Arbitration Institute of the Stockholm Chamber of Commerce in December 2003. The number of arbitrations under the Treaty will surely grow in the years to come.

About the Editor:
Clarisse Ribeiro, Counsel, Energy Charter Secretariat, Brussels

Clarisse Ribeiro joined the Energy Charter Secretariat in 2002 and is Legal Counsel in the Legal Affairs unit. Among her responsibilities, Ms Ribeiro is actively involved in the Legal Advisory Task Force, mandated by the Energy Charter Conference to prepare model agreements for the construction of cross-border pipelines, and is responsible for contacts with the Legal Department of the Portuguese Ministry for Foreign Affairs, the Depository of the Energy Charter Treaty. Prior to joining the Energy Charter Secretariat, Ms Ribeiro worked as an Official for the Secretariat Division of the European Central Bank in Frankfurt am Main.

Before taking a post-graduate diploma (DESS) in public international law at the University of Paris I Panthéon-Sorbonne, which she passed with first class honours in 2000, Ms Ribeiro graduated with honours from the University of Paris II Panthéon-Assas.

About the Contributors:
Karl-Heinz Böckstiegel, Independent Arbitrator

Karl-Heinz Böckstiegel is a Member of Law Faculty of University of Cologne as Professor Emeritus. Professor Böckstiegel is also the President of the International Law Association (ILA), and the German Association for International Law, and has practiced extensively as parties’ counsel, mediator, and as arbitrator and president of arbitration tribunals in many national and international arbitrations of the ICC, ICSID, NAFTA, AAA, UNCITRAL and others.

Professor Böckstiegel has authored twelve and edited thirty-three books. He has also authored over three hundred articles, especially on the protection of foreign investments, international commercial contracts, state contracts, international legal procedure in civil and commercial matters, expropriation and nationalization measures, international commercial arbitration, and other fields of international business law, as well as on liability in aviation, law of airports and air traffic control, commercial space activities, manned space flight, environmental protection in space, settlement of space law disputes, and other fields of air and space law.

Graham Coop, General Counsel, Energy Charter Secretariat

Graham Coop joined the Energy Charter Secretariat as General Counsel in 2004. Prior to this, he was head of the Energy and Natural Resources Group at Freshfields Bruckhaus Deringer, Paris, where he was based from 1992 until 2002, followed by two years as a partner with Denton Wilde Sapte’s Energy and Infrastructure Department in London. He was a member of the legal team representing Bahrain in its territorial sovereignty and maritime delimitation dispute with Qatar in the International Court of Justice, and received the Order of Bahrain as a result of his work. In 1998 and 1999, he was seconded to lead the five-lawyer International Transport and Supply Contracts Division of the Legal Service of Gaz de France, the French gas utility.

Hans Corell, UN Under-Secretary-General for Legal Affairs and Legal Counsel

Hans Corell is the Former Ambassador in the Swedish Foreign Service and Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations from March 1994 to March 2004. In 1984, he was appointed Ambassador and Head of the Department for Legal and Consular Affairs of the Ministry for Foreign Affairs, a position he held until he joined the United Nations in 1994. He has been a member of Sweden’s delegation to the United Nations General Assembly from 1985 to 1993, and has had several assignments related to the Council of Europe, OECD and the CSCE (now OSCE).

Together with two other rapporteurs, Hans Corell authored the CSCE proposal for the establishment of the International Tribunal for the former Yugoslavia, transmitted to the UN in February 1993. In 1998, he was the Secretary-General’s representative at the Rome Conference on the International Criminal Court. He holds an honorary Doctor of Laws degree at the University of Stockholm (1997).

Bernardo M. Cremades, Senior Partner, B. Cremades y Asociados, Madrid

Bernardo Cremades is the Senior Partner of the law firm of B. Cremades y Asociados in Madrid. He is a Professor at the University of Madrid with the distinguished position of Catedrático in the Faculty of Law and the Faculty of Economics.

Professor Cremades is a member of the Madrid Bar and formerly of the Paris and Brussels Bars, specializing in international commercial and investment arbitration. He is President of the Spanish Court of Arbitration, President of the Global Center for Dispute Resolution Research, and a member of the International Council for Commercial Arbitration and the ICC Institute of World Business Law.

Professor Cremades has participated as an attorney, arbitrator or as President of the Arbitral Tribunals in more than 150 arbitral proceedings. He has recently been appointed as an arbitrator in a number of ICSID Investor-State arbitrations.

Emmanuel Gaillard, Partner, Head of the International Arbitration Group, Shearman & Sterling LLP, Paris; Professor of Law, University of Paris XII

Emmanuel Gaillard heads Shearman & Sterling’s International Arbitration Group. He has represented major corporations, governments and government-owned entities in over 200 international arbitration cases (with emphasis on oil and gas, foreign investment, construction, telecommunications, mergers and acquisitions and environmental disputes). His litigation experience includes a broad range of commercial cases before the French courts, as well as extensive work on financial and securities litigation matters. He has also acted as sole arbitrator, party-appointed arbitrator or chairman in more than 40 international arbitrations.

Mr. Gaillard is a Professor of Law and teaches international arbitration and private international law at the University of Paris XII. He has published extensively on international arbitration and private international law.

Laurent Gouiffès, Of Counsel, Allen & Overy, London and Paris

Laurent Gouiffès is of counsel in the litigation department of Allen & Overy and head of the international arbitration practice in Paris. From 2002 to 2005 he was a senior associate at Denton Wilde Sapte, London, and from 1998 to 2002 a lawyer at Freshfields Bruckhaus Deringer, Paris. He specialises in international arbitration, technical and energy-related disputes and energy advice. He has acted as counsel to parties or secretary to arbitral tribunals in numerous arbitrations, in particular under the ICC, LCIA, ICSID, CAS and UNCITRAL rules. He also has experience in non-contentious work in the energy sector and has advised in relation to LNG projects, uranium joint ventures and CHP agreements throughout Western Europe, the United States and Canada.

Mr. Gouiffès publishes regularly on topical issues in arbitration, energy and public/private international law. Since 2001, he has been a lecturer on international arbitration for a post-graduate course at the University of Paris I Panthéon-Sorbonne.

Richard Happ, Senior Associate, Luther Rechtsanwaltsgesellschaft mbH

Richard Happ is a lawyer in the dispute resolution department of Luther in Hamburg, Germany. Prior to joining the firm in 2001, he spent his legal clerkship (Referendariat) from 1998 to 2001 in Kiel, Hamburg, Speyer and at the Department of Legal Affairs of the Energy Charter Secretariat in Brussels. From 1996 to 1999, he was a research assistant (wiss. Mitarbeiter) at the Faculty of Law of the University of Kiel. Mr. Happ has published several papers on the topic of investment arbitration, in particular his doctoral thesis on State-Investor Arbitration under Article 26 ECT. He is adjunct lecturer (Lehrbeauftragter) for international commercial arbitration at the University of Kiel.

Kaj Hobér, Partner, Mannheimer Swartling Advokatbyrå, Stockholm

Kaj Hobér is a partner in the law firm Mannheimer Swartling, Stockholm and Professor of East European Commercial Law at Uppsala University. He has been heavily involved in the legal aspects of doing business in Eastern Europe and the former Soviet Union for the last 25 years. His arbitration experience includes representing both Eastern and Western European, American and Russian parties as well as parties from developing countries in international arbitrations. He has also been involved in numerous oil and gas arbitrations, relating primarily to Northern Africa, the Middle East and the former Soviet Union. He has acted as counsel and arbitrator (including chairmanships) in more than 300 international arbitrations, including representation of the claimant in the first ECT award, as well as involvement in many other investment arbitrations. He is a member of the board of the Arbitration Institute of the Stockholm Chamber of Commerce, the International Arbitration Club (London) and a member of the ICC Institute of International Business and Law (corresponding member).

Stephen Jagusch, Partner, Allen & Overy LLP, London

Stephen Jagusch is a partner at Allen & Overy LLP specialising in commercial and investment treaty arbitration. He has acted as advisor and advocate in dozens of ad hoc and institutional international arbitrations conducted in many countries across the world and subject to a wide variety of governing substantive and procedural laws. A great many of his cases have been for or against sovereign states or substantial multinational organisations, and in recent years he has become a recognised expert in the field of ICSID arbitration and disputes arising under bilateral or multilateral investment treaties. In addition to acting as adviser and advocate, he is regularly appointed as sole arbitrator, chairman or co-arbitrator in international arbitrations, both institutional and ad hoc. Mr. Jagusch has lectured extensively on international arbitration around the world.

Gabrielle Kaufmann-Kohler, Professor, School of Law, Geneva University; Partner, Schellenberg Wittmer, Geneva

Gabrielle Kaufmann-Kohler is a professor of private international law at Geneva University Law School (since 1997), and a practising attorney and partner with Schellenberg Wittmer, Geneva (since 1996). Previously, she was an adjunct professor at Geneva University Law School (1993 to 1997) and a partner (1985 to 1995) and associate (1981 to 1985) with Baker & McKenzie, Geneva and New York. She was admitted to the New York Bar in 1981 and to the Geneva Bar in 1976.

Professor Kaufmann-Kohler focuses primarily on international commercial and investment arbitration and has extensive arbitration experience, having handled over one hundred and twenty international arbitrations, as presiding, sole or party-appointed arbitrator, or as counsel. She appears on numerous arbitration panels, including ICC, ICSID, and AAA. She chaired the Swiss Arbitration Association from 2001 to 2005, and is a member of the International Council for Commercial Arbitration (ICCA), the ICC Court of Arbitration, and the Board of The Swiss International Law Society. Her teaching and research activities focus on dispute resolution, including commercial, investment, and sports arbitration, international litigation, international contracts, electronic commerce and online dispute resolution.

Sergei N. Lebedev, President, Maritime Arbitration Commission at the Chamber of Commerce and Industry of the Russian Federation, Moscow

Sergei Lebedev has been the Chairman of the Maritime Arbitration Commission, and also a member of the Presidium of the International Commercial Arbitration Court at the Russian Chamber of Commerce and Industry. He sits on the panel of several foreign arbitral institutions and has acted as arbitrator in more than 600 international cases in Russia and abroad. He has participated in the work of international organizations including UNCITRAL (since 1970), the Council of Mutual Economic Assistance, International Council for Commercial Arbitration (Honorary Vice-President), UN Compensation Commission (panel member), Economic Commission for Europe, the Hague Conference of Private International Law.

Anatoly Martynov, Director General of the Centre for Trade Policy and Law, Moscow

Anatoly Martynovhas worked in the Ministry of Foreign Trade of the USSR, and in the Ministry of Foreign Economic Relations of Russia where he headed the Legal and Treaty Department. Mr. Martynov participated in the elaboration of the drafts of international conventions, guides, and model laws within the framework of UNCITRAL, UN European Economic Commission, the Hague Conference on Private International Law, and UNIDROIT, as well as in the negotiations on the Energy Charter Treaty and on the Agreement on Partnership and Cooperation between Russia and European Communities. Currently, Mr. Martynov provides legal advice to the Russian delegation at the negotiations on Russia’s accession to the World Trade Organization.

Antonio R. Parra, Visiting Professor, Faculty of Laws, University College London

From 1999 to 2005, Professor Parra was Deputy Secretary-General for the International Centre of Investment Disputes (ICSID), and from 1990 to 1999 he was Legal Adviser, ICSID. His earlier positions include Senior Counsel, ICSID; Senior Counsel, World Bank; Counsel, World Bank and Assistant Legal Counsel, OPEC Fund for International Development.

Michael Polkinghorne, Partner, White & Case, Paris

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. While he has covered disputes arising in many different countries, his current practice concentrates on Eastern Europe and the CIS, as well as South and South East Asia, where he lived and worked in the late 1990s. He has significant expertise in the area of foreign direct investment, acting both 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 and North Africa, and has advised the governments of India, Yemen and Mozambique on energy-related matters.

Mr. Polkinghorne is presently a member of the Legal Advisory Task Force of the European Energy Charter Secretariat, which is currently preparing a new edition of the Model Intergovernmental and Host Government Agreements for Cross-Border Pipelines. Admitted to practice in both common law and civil law jurisdictions, Mr. Polkinghorne is presently the alternate Australian member of the ICC’s International Court of Arbitration, where he is also a member of their taskforce on reducing costs in complex arbitrations.

Christoph H. Schreuer, Professor of Law University of Vienna, School of Law, Department of International Law and International Relations, Vienna

Christoph Schreuer is a graduate of the Universities of Vienna, Cambridge and Yale. He has spent most of his academic career at the Department of International Law of the University of Salzburg, Austria. From 1992 to 2000, he was the Edward B. Burling Professor of International Law and Organization at the Paul H. Nitze School of Advanced International Studies (SAIS) of the Johns Hopkins University in Washington, D.C. Since October 2000, he has served as Professor of International Law at the University of Vienna, Austria. Professor Schreuer is also a member of the ICSID Panel of Conciliators and Arbitrators, and will serve from November 2002 to November 2008. Over an academic career that has spanned more than thirty years, Professor Schreuer has published numerous articles and several books in the field of international law.

Audley Sheppard, Partner, Clifford Chance LLP, London

Audley Sheppard is a Partner in the International Law and International Arbitration Groups of Clifford Chance LLP in London. He has considerable experience in dispute settlement under Bilateral Investment Treaties. He has acted as counsel in BIT arbitrations for States (including the Czech Republic and the Republic of Hungary) and investors (including arbitrations against India arising from the Dabhol power project). He is on the Advisory Board of the Investment Treaty Forum of the British Institute of International and Comparative Law, and a member of the International Law Association Committee on Investment Protection. He has over eighteen years’ experience specialising in the resolution of disputes arising out of complex infrastructure projects and other international investments. He has conducted many ICC, LCIA, AAA, UNCITRAL and ICSID arbitrations and regularly sits as an arbitrator.

Mr. Sheppard is co-chair of the IBA Arbitration Committee for the 2006-2007 term, Rapporteur of the International Law Association Arbitration Committee, and a member of the Editorial Board of the International Arbitration Law Review and of Business Law International. He is also a member of the ICC Commission on International Arbitration and a fellow of the Chartered Institute of Arbitrators.

Anthony Sinclair, Associate, Allen & Overy LLP, London

Anthony Sinclair is an associate in the International Arbitration Group of Allen & Overy LLP, and a Barrister and Solicitor of the High Court of New Zealand. He has acted in ICC, UNCITRAL and ICSID arbitration proceedings, with notable experience in the latter. Mr. Sinclair has acted for CDC Group PLC, successfully defending an annulment application brought by the Republic of Seychelles regarding an award upholding sovereign guarantees, and presently represents the United Arab Emirates in another ICSID annulment proceeding. He has acted in UNCITRAL arbitration proceedings in claims against an African state and presently represents a Dutch investor in a BIT claim against the Czech Republic. Mr. Sinclair regularly advises on issues of public international law focusing on the substantive and procedural issues of investor-state arbitration under the 1994 Energy Charter Treaty and other bilateral investment protection treaties.

Christer Söderlund, Partner, Advokatfirman Vinge KB., Stockholm

Christer Söderlund has been a partner with Vinge KB since 1977 and a member of the Swedish Bar Association since 1976. He has extensive experience in international arbitration as Chairman and Sole Arbitrator in institutional arbitra­tion under the auspices of the Arbitration Institute of the Stockholm Chamber of Commerce and the International Chamber of Commerce and ad hoc arbitration, primarily in Stockholm, Sweden.Mr. Söderlund also acts as legal counsel in international arbitration cases and domestic litigation in Sweden.

Thomas W. Wälde, Professor & Jean Monnet Chair, CEPMLP, University of Dundee

Thomas Wälde is Professor of International Economic, Natural Resources and Energy Law and former (until 2002) Executive Director at the Centre for Energy, Petroleum and Mineral Law & Policy (CEPMLP), University of Dundee (Scotland, UK). In 1995, he was awarded the first "Jean-Monnet Chair on European Economic and Energy Law." Earlier, Professor Wälde served as the Principal UN Interregional Adviser on Natural Resources, Energy and Investment Law. In 1996, he published the authoritative book on the Energy Charter Treaty, and has widely published and edited books on international economic, investment, energy, natural resources, mining and environmental law. He advises multinational companies, governments and international organizations throughout the world in his field of expertise.

Katia Yannaca-Small, Legal Advisor to the Investment Division, Directorate for Financial and Enterprise Affairs in the OECD, Paris

Since 2001, Katia Yannaca-Small has been responsible for analytical work on all legal issues related to international investment agreements, in particular, new developments in investor-state dispute settlements. She manages the related activities of the OECD Investment Committee, and proposes issues for discussion and possible policy development. Prior to this work, Ms. Yannaca-Small worked on Foreign Direct Investment reviews of Central and Eastern European countries, in particular on the examination of the legal framework for and policies towards foreign investment. She also worked on issues of corporate responsibility and on the OECD Guidelines for Multinational Enterprises. She was responsible for the analytical and organisational support of OECD work on corruption during the period leading to the OECD Anti-Bribery Convention.