Energy Security and Energy Sovereignty from the Investment Protection Perspective: International Law, EU Law and National Policies
Journal of International Trade and Arbitration Law, 2013, Vol II, No 1, p 3-47
54 Pages Posted: 18 Oct 2013
Date Written: October 4, 2013
Energy security and energy sovereignty have their national and international dimensions. In the EU Member States, these dimensions are further complemented by the EU perspective. The concept of raw materials and energy security, as currently proclaimed by a number of states, is probably too broad in terms of international practice. International law does not encroach on the legislative (regulatory) sovereignty of any state as long as the state observes its international obligations. Its obligations regarding the promotion and protection of foreign direct investments only allow the state to invoke energy security and sovereignty in certain specified cases, i.e., in a state of necessity and with respect to measures proportional to the relationship with the protected interests of the investor. In particular, the criterion of necessity is very narrowly interpreted by international practice and any measures targeted against the investor’s property interests must be an exceptional resolution and objectively indispensable. Furthermore, the situation which gave rise to the state of necessity must not have been caused by the state which invokes its right to regulate. Apart from the case law in the area of investment disputes, it is also possible to take into account a number of decisions rendered by the European Court of Human Rights.
Keywords: arbitration, armed forces, BIT, dispute settlement, ECHR, ECT, Energy Charter Treaty, energy, environment, expropriation, foreign direct, investments, fork in the road clause, GATT, harmonisation, ICSID, international law, investment policy, investment protection, legitimate regulation, Lisbon Treat
JEL Classification: E61, E62, F13, F35, F42, H80, K10, K11, K22, K32, K33, K41
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