The Journal of

WORLD INVESTMENT & TRADE

ABSTRACTS

Kaj Hobér: The Energy Charter Treaty—An Overview

The article provides a general overview of the multilateral energy cooperation created by the Treaty (e.g. trade, transit, energy efficiency and dispute resolution), as well as a more detailed account of the Treaty’s investment protection regime and provisions on settlement of investor-State disputes. The article also addresses the provisional application of the Treaty in relation to signatories that have not yet ratified the Treaty. This question is of great practical significance for investors in the energy sector, since Russia is one of the States that apply the Treaty provisionally. The last part of the article provides an analysis of the three arbitral awards that so far have been issued under the Treaty; Nykomb Synergetics Technology Holding AB v. the Republic of Latvia (final award), Petrobart Limited v. the Kyrgyz Republic (final award) and Plama Consortium Limited v. Republic of Bulgaria (jurisdiction). In particular, the awards in Petrobart and Plama raise jurisdictional issues of general interest, including burden of proof with regard to jurisdiction and the host State’s possibility under Article 17 of the Treaty to deny protection for investors that are “mailbox-companies” owned by nationals of non-contracting parties. Finally, the article discusses the issue of compensation in case of violation of investment protection provisions (fair and equitable treatment, non-discrimination, etc.) other than expropriation, with particular emphasis on the Nykomb and Petrobart awards.

Kaj Hobér is a Partner with Mannheimer Swartling Advokatbyrå in Stockholm, Sweden and Professor of East European Commercial Law at Uppsala University.

Andrew Newcombe: Sustainable Development and Investment Treaty Law

Critics of international investment agreements (Iias) argue that the Iia regime threatens sustainable development.  This paper evaluates the Iia regime against the New Delhi Declaration's seven principles of international law relating to sustainable development and concludes that the Iia regime is not a serious impediment to sustainable development.  Recent treaty practice and investment treaty jurisprudence integrate elements of the sustainable development framework into the Iia regime, even if this integration remains in many respects embryonic.  While the Iia regime could do more to promote sustainable development, it is unclear whether the Iia regime is the best institutional mechanism for addressing wide-ranging and complex sustainable development issues.  In the short to medium term, the Iia regime will continue to evolve incrementally through developments in Iia jurisprudence and treaty practice. This highlights the need for treaty drafters and interpreters to consider fully the application and integration of the sustainable development framework.

Andrew Newcomb is Assistant Professor in the Faculty of Law of the University of Victoria, Canada and a Research Fellow at the Centre for International Sustainable Development Law. 

Thomas J. Westcott: Recent Practice on Fair and Equitable Treatment 

Recent investment arbitral awards interpreting the fair and equitable treatment standard demonstrate developments on two important issues. First, these cases cement as core elements of fair and equitable treatment an investor's legitimate expectations and the need for host states to provide a stable business environment. Second, recent awards have found no practical distinction between the fair and equitable treatment treaty standard and the modern-day minimum standard of treatment under customary international law. Whilst, prima facie, this convergence resolves confusion over whether fair and equitable treatment is a separate requirement, it remains ambiguous under what circumstances objective fairness principles may be applied.

Thomas J. Westcott is an international investment and trade consultant in Geneva, Switzerland and was formerly a senior trade adviser in  the Australian Prime Minister's department and an investment treaty negotiator and policy adviser with the Australian Treasury.  

Guiguo Wang : The Race Discrimination Bill in Hong Kong—A Critical Overview

The Government of the Hong Kong Special Administrative Region of China, for the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination, published the Race Discrimination Bill in late 2006. Yet, the Bill has excluded the newly arrived Chinese from the mainland of China from its application, although the Hong Kong Government admits the existence of discrimination against such Chinese.  For that, the Bill has violated the Basic Law of Hong Kong, which guarantees the equal rights of those living in the territory.  The Bill is also in violation of customary international law in general and the UN International Covenant on Civil and Political Rights in particular, as well as the spirit of law of any society governed by the rule of law.

Guiguo Wang, LL.M. of Columbia University Law School and Jsd of Yale Law School, is Professor (Chair) of Chinese and Comparative Law at City University of Hong Kong and Chairman of the Hong Kong Wto Research Insitute.

Georgios I. Zekos: The Case for giving to Private Parties Access to the Wto Dispute Settlement System

Awards deriving from the Dispute Settlement Body are considered to be mere recommendations. The Wto political body becomes the source of the award and takes that decision by adopting a panel or Appellate Body report. Wto adjudication influences all the members all the way through their participation in the monitoring of execution, and bilateral adjudication should be subject to multilateral inspection or recognition before being enforceable erga omnes. The character of the Wto itself is intergovernmental, regardless that disputes often relate to particular industries or even single companies and that they are carried out by States in their interest, if not officially on their behalf. There is a need for a reform to admit claims by private parties.

Georgios I. Zekos, BSc (Econ) (Aristotle University of Thessaloniki), JD (Democritos University of Thrace), Llm (University of Hull), and PhD (University of Hull), is an Attorney at law and Economist in Greece.