The following Arbitration guidance note Produced in partnership with Cyrus Benson, Charline Yim, Victoria Orlowski and Ankita Ritwik of Gibson Dunn & Crutcher LLP provides comprehensive and up to date legal information covering:
This Practice Note deals with the substantive standards of protection under the Energy Charter Treaty (ECT). It does not cover the notions of qualifying investor and qualifying investment, denial of benefits or the dispute resolution mechanism under the ECT (including arbitration). For more information on these aspects, see Practice Note: Investment treaty arbitration under the Energy Charter Treaty. The terms investor, investment and Contracting Party as used herein are defined in that Practice Note.
Part III of the ECT includes a catalogue of provisions that establish a high standard of protection of foreign investments that occur within the territories of host states that are Contracting Parties to the ECT. The key provisions in Part III of the ECT are Articles 10 and 13.
Article 10(1) of the ECT obliges Contracting Parties to accord fair and equitable treatment (FET) to protected investments. It provides that each Contracting Party shall ‘encourage and create stable, equitable, favourable and transparent conditions’ for investors of other Contracting Parties, which includes ‘a commitment to accord at all times […] fair and equitable treatment’ to those investors.
As discussed in Practice Note: Protections for foreign investors in investment treaty arbitration, FET is the most frequently invoked standard of protection in investment treaty disputes. This protection also is one of the
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