Investment treaty arbitration under the Energy Charter Treaty
Produced in partnership with Cyrus Benson, Charline Yim, Victoria Orlowski and Ankita Ritwik of Gibson Dunn & Crutcher LLP
Investment treaty arbitration under the Energy Charter Treaty

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:

  • Investment treaty arbitration under the Energy Charter Treaty
  • Background of the ECT
  • Covered or qualifying investors under the ECT
  • Qualifying investments under the ECT
  • Jurisdictional hurdles to initiating an ECT arbitration
  • Practical considerations
  • Intra-EU disputes and the ECT

UNDER REVIEW: This Practice Note is under review in light of more recent decisions concerning the relevance of the Achmea decision in investment treaty arbitration proceedings.

This Practice Note addresses investment treaty arbitration under the Energy Charter Treaty (ECT). It covers the background of the ECT, the investors and investments it protects and the hurdles to establishing jurisdiction under the ECT, including exhausting the requirement to attempt amicable settlement, forum selection constraints, and the exercise of the ECT’s denial of benefits clause. This Practice Note also considers the issue of whether ECT arbitral tribunals have jurisdiction in arbitrations brought by investors from EU Member States against other EU Member States (intra-EU disputes) under the ECT in detail as this is a significant issue in ECT jurisprudence.

This Practice Note does not cover the substantive standards of protection under the ECT. For information on these aspects, see Practice Note: Investment protection under Energy Charter Treaty.

Background of the ECT

After the end of the Cold War, a collection of states met to establish a model for energy co-operation to facilitate the development of energy resources, promote energy security and encourage economic integration in former Soviet Union countries. The result of these discussions was the European Energy Charter, a non-binding declaration by which states confirmed their mutual objectives to co-operate in energy-related