THE ‘PROVISIONAL APPLICATION’ OF THE ENERGY CHARTER TREATY

2009 ◽  
pp. 593-607
Author(s):  
Gerhard Hafner
Keyword(s):  
Provisional Application ◽  
Energy Charter Treaty

PRACTICE OF INTERNATIONAL INVESTMENT ARBITRATIONS ON IMPLEMENTATION OF CERTAIN PROVISIONS OF THE ENERGY CHARTER TREATY

2018 ◽  
pp. 48-59
Author(s):  
Z. Tropin
Keyword(s):  
General Practice ◽  
Dispute Settlement ◽  
General Trend ◽  
International Investment ◽  
The Other ◽  
International Agreement ◽  
Provisional Application ◽  
National Courts ◽  
Energy Charter Treaty ◽  
State Enterprises

Practice of international arbitrations on implementation of investment provisions of Energy Charter Treaty («ECT») is considered in the article. Certain investment disputes which appeared on the earliest period of operation of this international agreement are considered. Respectively they are interesting when one would like to forecast application of ECT's provisions. Conclusions of arbitration tribunals in cases Ioannis Kardossopoulos (Greece) v. Georgia, Petrobart Ltd. (Gibraltar) v. Kirgizia, Plama Consortium Ltd. (Cyprus) v. Bulgaria and Nykomb Synergetics Technology Holding AB (Sweden) v. Republic of Latvia are analyzed in the article. Among other things author investigates such problematic issues of implementation of ECT investment provisions as: responsibility of state for the violations performed by state enterprises; interrelation of jurisdiction of national courts and international arbitration tribunals on settlement of international disputes under the ECT; provisional application of ECT and possibility to consider violation of investment provisions on the jurisdictional stage. An author shows that ECT investment arbitrations act on the general trend of investment dispute settlement. On the other hand and taking into account peculiarities and importance of ECT respective decisions may become significant for the general practice of investment dispute settlement.

scholarly journals Provisional Application of Energy Treaties by the Russian Federation

Lex Russica ◽  
2021 ◽  
Vol 74 (2) ◽  
pp. 80-92
Author(s):  
O. V. Glikman
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Legal Regulation ◽  
Economic Consequences ◽  
Special Role ◽  
Provisional Application ◽  
Energy Charter Treaty ◽  
The Status ◽  
The Russian Federation ◽  
Bilateral Treaties

International agreements are of particular importance in interstate energy cooperation. The application by the Russian Federation of the mechanism of temporary application of treaties in the field of energy requires a comprehensive analysis, taking into account the problems that have arisen in connection with the provisional application of the Energy Charter Treaty and subsequent amendments to Article 79 of the Constitution of the Russian Federation. The general and sectoral approaches to the provisional application of treaties that exist in Russian practice need to be improved.The paper analyzes and compares the norms of international law and Russian legislation regulating the provisionary application of treaties, the works of Russian scientists, which highlight the general problems of the provisional application of treaties by the Russian Federation, as well as the final provisions of treaties of the Russian Federation in the field of energy.The author identifies common gaps in the norms of Russian legislation regulating the provisional application of treaties, trends and problems of the provisional application of multilateral and bilateral treaties by the Russian Federation in various energy sectors.The author concludes that the new approach should be based on a restrictive approach to the use of the institute of provisional application of treaties regarding terms and types of treaties. The treaties to which a special restrictive approach should be applied are to include those that have significant financial and economic consequences, provide for expenditures or lost revenues of the budget of the Russian Federation, regulate taxes, duties, and the provision of state credit; agreements on the borders, delimitation of maritime spaces, the status or regime of individual territories; and agreements that provide for the mandatory jurisdiction of judicial and arbitration bodies.The continuous improvement of international legal regulation in the field of energy should be a separate state task, since, despite numerous skeptical assessments, international law plays a special role and will be of great importance in the regulation of international relations, including in the field of energy.

Part I Conclusion of Treaties, 5 Provisional Application of Treaties in International Law: The Energy Charter Treaty Awards

2011 ◽  
Author(s):  
Arsanjani Mahnoush H ◽  
Reisman W Michael
Keyword(s):  
International Law ◽  
Vienna Convention ◽  
Provisional Application ◽  
Energy Charter Treaty ◽  
The Law ◽  
Internal Procedures

The tension between the often urgent need for effective legal arrangements in modern international law and the much slower internal procedures for finalization of commitment to treaties has lead to the practice of provisional application of treaties. Many treaties provide for their provisional application pending final ratification by the states parties and the Vienna Convention on the Law of Treaties has codified authoritative practice. But two recent arbitral awards, in applying Article 45 of the Energy Charter Treaty, have created some confusion.

Part II Investor-State Arbitration in the Energy Sector, 8 Overview of Energy Charter Treaty Cases

2018 ◽  
Author(s):  
Hobér Kaj
Keyword(s):  
Statistical Data ◽  
Energy Sector ◽  
Provisional Application ◽  
The Future ◽  
Energy Charter Treaty ◽  
Definition Of

This chapter analyzes rendered awards and pending Energy Charter Treaty (ECT) cases using detailed statistical data on the disputes overall (including the number of cases brought and their outcomes), the parties involved (including the types of investors making use of the ECT, and most frequent respondent states), the underlying investment (including the different energy sectors concerned), and the arbitration rules used. It also discusses a number of issues that often arise in ECT cases. First, the chapter looks at jurisdictional objections regularly raised by respondents, including the provisional application of the ECT under Article 45; the ‘denial of benefits’ clause of Article 17(1); and the definition of an ‘investment’ under Article 1(6). The chapter then analyzes selected merits issues that have been addressed in the ECT awards rendered to date. Finally, this chapter considers the future of the ECT.

14 Part VIII: Final Provisions

2020 ◽  
Author(s):  
Hobér Kaj
Keyword(s):  
Vienna Convention ◽  
Authentic Texts ◽  
Provisional Application ◽  
Energy Charter Treaty ◽  
The Government ◽  
Article 50

This concluding chapter assesses Part VIII, ‘Final Provisions’, of the Energy Charter Treaty. Article 38 of the ECT states that the ECT was open for signature only for States which had signed the European Energy Charter. Article 39 is entitled ‘Ratification, Acceptance or Approval’. The ECT is open for ratification, acceptance, and approval to States which have signed the Treaty as per Article 38. Article 40 builds on Article 29 of the Vienna Convention, which deals with the territorial scope of treaties. Similarly, Article 41 mirrors Article 15 of the Vienna Convention, which deals with consent by a State to be bound by a treaty expressed by accession. Article 42 sets forth the procedure to be followed to amend the Treaty. Meanwhile, pursuant to Article 43 of the ECT, the Charter Conference may authorize the negotiation of association agreements with a view to pursuing the objectives and principles of the European Energy Charter and the ECT. The provisions of Article 44 determine when the Treaty enters into force. Article 45 concerns provisional application, while Article 46 concerns reservations. Article 47 regulates withdrawals from the Treaty, the procedure thereof, and the effect of withdrawals. Article 48 is entitled ‘Status of Annexes and Decisions’; Article 49 states that the Government of the Portuguese Republic shall be the Depositary for the ECT; and Article 50 is entitled ‘Authentic Texts’.

Is Provisional Application on the Rise in International Investment Agreements? The European Union’s Recent Treaty Practice and the Curious Case of Von Pezold

2019 ◽  
Vol 88 (2) ◽  
pp. 180-215
Author(s):  
William Joseph Simonsick
Keyword(s):  
International Investment ◽  
Vienna Convention ◽  
Potential Range ◽  
Legal Regime ◽  
Provisional Application ◽  
Textual Interpretation ◽  
International Investment Agreements ◽  
Energy Charter Treaty ◽  
Investment Agreements ◽  
Peculiar Phenomenon

As the Vienna Convention on the Law of Treaties (vclt) approaches its 50th birthday, the peculiar phenomenon of provisional application appears to be on the rise. Although previously confined, in the sphere of international investment agreements (iias), to the context of the Energy Charter Treaty, provisional application is increasingly seen in European Union multilateral investment treaties. Furthermore, the recent decision of Von Pezold has explored the open-ended nature of Article 25(1)(b) vclt, and the potential range of iias to which provisional application is possible. Subject to textual interpretation authorized by Articles 31 and 32 vclt, found in Kardassopoulos, Petrobart and the Yukos Oil tribunals, provisional application is a legal regime that can very easily lead towards unintended results. This article suggests the solutions of more careful syntax and grammar, and limiting clauses and changes in legal processes, to further mature provisional application jurisprudence.

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