Overlapping Investor-State Arbitration Clauses for Energy and Environmental Disputes in the Energy Charter Treaty Area
8(2) World Arbitration and Mediation Review 181 (2014)
Posted: 8 Sep 2014 Last revised: 3 Aug 2015
Date Written: September 5, 2014
This article focuses on the Energy Charter Treaty (ECT) and the bilateral investment treaties concluded between the contracting parties to this treaty. These investment instruments seem to co-exist and apply in parallel to investment disputes in the energy sector. However, they contain dissimilar provisions which can prove decisive when recourse to investor-State arbitration is sought. Especially, the significance of these dissimilarities is more evident in those cases where a disputing investor resorts to investment arbitration by invoking an intra ECT investment treaty in order to avoid the provisions found in the ECT. For this reason, this article discusses the impact of this “parallelity” to investment disputes in the energy sector that may or may not be associated with environmental concerns, with the view to clarify whether this phenomenon should be viewed as another inconsistency of international investment law.
Keywords: Energy Charter Treaty, investment arbitration, investor-state arbitration, energy disputes, environmental disputes, parallelity, overlapping treaties
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