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International Arbitration in the Energy Sector edited by Scherer, Maxi (22nd February 2018)
- Preliminary Material
- Main Text
- 1 Introduction
- Part I Commercial Arbitration in the Energy Sector
- 2 Upstream Oil and Gas Disputes
- I Introduction
- II Joint Operating Agreement
- III Operators’ Duties
- IV Pre-emption Rights
- V Default and Forfeiture
- A Funding of the joint venture
- B Disputes giving rise to default and forfeiture
- C Remedies available in the event of non-payment of a cash call
- 2.101
- 2.102
- 1 Default
- 2 Forfeiture
- 2.114
- 2.115
- 2.116
- a Challenges to forfeiture
- b An unenforceable penalty?
- c Principal factors relevant to upholding forfeiture remedies
- 2.127
- (1) The JOA is a contract executed by sophisticated, legally-advised commercial parties
- (2) The forfeiture remedy is available to all parties
- (3) The remedy is not disproportionate or oppressive, but properly reflects the importance of funding the venture through the JOA cash call procedure
- (4) A cure period is available
- d Principal factors relevant to challenging forfeiture remedies
- 2.133
- (1) The defaulting party may forfeit a very valuable participating interest following a trivial breach
- (2) The remedy will apply to a wide range of breaches and may be a blunt instrument
- (3) The purpose of the remedy is to deter breaches and punish the defaulting party, rather than to compensate the non-defaulting parties
- e Application of the principles in practice
- 3 Other remedies—buy-out, enforcement of security, and withering
- VI Conclusion
- 3 Gas Supply Transactions and Disputes
- I Introduction
- II Gas Supply Transactions
- 3.03
- 3.04
- A Production and processing contracts
- B Sales from producers to wholesalers
- C Sales from wholesalers to end users
- III Gas Supply Disputes
- IV Conclusion
- 4 Renewable Energy Disputes
- 5 Energy Construction and Infrastructure Disputes
- 6 Mining Disputes
- I Introduction
- II What Are Mining Disputes?
- III Mining Disputes in Practice
- IV Future of Resolving Mining Sector Disputes
- V Conclusion and Future Outlook
- 2 Upstream Oil and Gas Disputes
- Part II Investor-State Arbitration in the Energy Sector
- 7 Contractual Mechanisms for Stability in Energy Contracts
- I Introduction: Energy Contracts and Providing for Change
- II Typical Law Stabilization or Freezing Clauses
- III Adjustment, Force Majeure, Hardship, and Economic Equilibrium Clauses
- IV Enforcement of Stabilization Clauses in International Arbitration Proceedings
- V Multi-Tier Dispute Resolution Clauses
- VI Conclusion
- 8 Overview of Energy Charter Treaty Cases
- I Introduction
- II Awards Rendered and Pending Cases
- III Jurisdictional Objections under the ECT
- 8.34
- A Provisional application under Article 45 ECT
- B Denial of benefits under Article 17(1) ECT
- 8.48
- 8.49
- 1 Jurisdiction or merits?
- 2 Meaning of the reference to nationals of a ‘third state’ in Article 17 ECT
- 3 Meaning of ‘substantial business activities’
- 4 When will a state be deemed to have exercised its right to deny benefits pursuant to Article 17(1) ECT?
- 5 Retrospective or prospective effect of denial of benefits pursuant to Article 17 ECT
- C ‘Investment’ under Article 1(6) ECT
- IV Selected Merits Issues
- V Future of the ECT
- 9 ECT and European Union Law
- 10 ECT and States’ Right to Regulate
- I Introduction
- II States’ Right to Regulate and Their Substantive Obligations under the ECT
- III Jurisprudence under the ECT regarding States’ Right to Regulate
- 10.10
- 10.11
- A Article 13(1) ECT
- B Article 10(1) ECT
- 10.40
- 10.41
- 1 Fair and equitable treatment
- a Obligation to provide stable, equitable, favourable, and transparent conditions
- b Purpose and context of the regulatory measures
- c Interference of the regulatory measures with the legitimate expectations of the investor
- d What can give rise to legitimate expectations?
- e Standard for legitimate expectations
- f Methodology of implementation of the regulatory measures
- 2 Unreasonable or discriminatory measures
- 3 Constant protection and security
- IV Conclusion
- 11 ECT and Renewable Energy Disputes
- 12 Energy Investor-State Disputes in Russia and the Commonwealth of Independent States
- I Introduction
- II Multilateral Investment Treaties
- III Bilateral Investment Treaties
- IV National Legislation
- V Individual Investment Agreements
- VI Conclusion
- 13 Energy Investor-State Disputes in Latin America
- I Introduction
- II Historical Background of Energy Investor-State Arbitration in Latin America
- III Assessing Fiscal Measures under Investment Protection Agreements
- IV Assessing Nationalizations under Investment Protection Agreements
- V Gaining Access to Investor-State Arbitration through Corporate Restructuring
- VI Conclusion
- 14 Energy Investor-State Disputes in Asia
- I Introduction
- II South and East Asian Attitudes towards Investor-State Arbitration
- III Reviving Investor-State Dispute Resolution in Asia
- IV Conclusion
- 15 Energy Investor-State Disputes in Africa
- I Introduction
- II Laws Regulating the Energy Sector in Africa
- III Laws Regulating Investors’ Rights in Africa
- IV Dispute Resolution Mechanisms
- V Status Quo in Energy Investor-State Disputes in Africa
- VI Conclusion
- 7 Contractual Mechanisms for Stability in Energy Contracts
- Part III Public International Law Disputes, Climate Disputes, and Sustainable Development in the Energy Sector
- 16 International Boundary Disputes and Natural Resources
- I Introduction
- II Determination of Modern Boundaries
- III Additional Impact of Irreversible Climate Change Damage to Other Resources
- IV Conclusion
- 17 Climate Disputes and Sustainable Development in the Energy Sector: Bridging the Enforceability Gap
- I Introduction
- II Sustainability Objectives for Energy
- III Instruments for Enforcement
- IV Enforcement in Practice
- V Conclusion: New Instruments on the Horizon?
- 18 Climate Disputes and Sustainable Development in the Energy Sector: Future Directives
- 16 International Boundary Disputes and Natural Resources
- Further Material
