CHAPTER 6 CURRENT DEVELOPMENTS IN INVESTOR-STATE ARBITRATION IN THE ENERGY AND EXTRACTIVE SECTORS

• Jurisdiction: United States

International Energy and Minerals Arbitration
(Sep 2013)
CHAPTER 6
CURRENT DEVELOPMENTS IN INVESTOR-STATE ARBITRATION IN THE ENERGY AND EXTRACTIVE SECTORS
Yas Banifatemi
Partner, Shearman & Sterling LLP
Paris, France

YAS BANIFATEMI is a Partner in Shearman & Sterling's International Arbitration Group and heads the firm's Public International Law practice. She advises and represents clients in investment treaty and commercial arbitrations, with particular focus on investment and energy disputes. She also sits as arbitrator, in both investment and commercial matters. Yas Banifatemi has been praised in Chambers Global as being a "star performer," a "brilliant lawyer with a sharp intellect," and a "prominent figure in international arbitration," also "having a considerable presence in public international law." Clients also commented on the "clarity of her opinions," describing her as "incredibly impressive all round" and a "reliable and robust advocate" having a "thorough understanding of the law she practices." She appears in the 45 Under 45 feature of American Lawyer's January 2011 issue, a ranking of "The Best and the Brightest" female lawyers under 45 worldwide, and in the 45 Under 45 feature of Global Arbitration Review's August 2011 issue, a global ranking of the leading figures of the international arbitration bar under 45. Yas Banifatemi holds a Ph.D in Public International Law from Panthéon-Assas University (Paris II) and an LLM from Harvard Law School. She teaches International Investment Arbitration at Panthéon-Sorbonne University (Paris I). She has authored numerous publications on international arbitration and public international law.

Current developments in investor-state arbitration in the energy and extractive sectors

Yas Banifatemi

Rocky Mountain Mineral Law Foundation

Toronto

September 16, 2013

Outline

I. Scope of protection, basis of claim and their influence on case strategy

II. Role of the investor's home State

III. Procedural matters

IV. Appointment of arbitrators

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UK Bilateral Investment Treaties (104)

Netherlands Bilateral Investment treaties (97)

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South Africa Bilateral Investment Treaties (49)

The Energy Charter Treaty. Members and Observers

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ECT cases | Concluded cases

▪ AES Summit Generation Ltd. (UK) v. Hungary (settled)

▪ Alstom Power Italia SpA and Alstom SpA (Italy) v. Mongolia (settled)

▪ Amto (Latvia) v. Ukraine

▪ Nykomb Synergetics Technology Holding AB (Sweden) v. Latvia

▪ Plama Consortium Ltd. (Cyprus) v. Bulgaria

▪ Petrobart (Gibraltar) v. Kyrgyzstan

▪ Ioannis Kardossopoulos (Greece) v. Georgia

▪ Amto (Latvia) v. Ukraine

▪ Libananco Holdings Co. Ltd. (Cyprus) v. Turkey

▪ Azpetrol International Holdings B.V. et al. (Netherlands) v. Azerbaijan

▪ Barmek Holding A.S. (Turkey) v. Azerbaijan (settled)

▪ Cementownia "Nowa Huta" S.A. (Poland) v. Turkey

▪ Europe Cement Investment and Trade S.A. (Poland) v. Turkey

▪ Liman Caspian Oil (the Netherlands) v. Kazakhstan

▪ AES Summit Generation Ltd (UK) v. Hungary

▪ Mohammad Ammar Al-Bahloul (Austria) v. Tajikistan

▪ Mercuria Energy Group Ltd (Cyprus) v. Poland

▪ Alapli Elektrik BV (Netherlands) v. Turkey

▪ Remington Worldwide Limited (UK) v. Ukraine

▪ Vattenfall AB, Vattenfall Europe AG, Vattenfall Europe Generation AG & Co. KG (Sweden) v. Federal Republic of Germany (settled)

▪ EVN AG (Austria) v. The Former Yugoslav Republic of Macedonia (settled)

▪ Slovak Gas Holding BV (the Netherlands) et al v. Slovak Republic (settled)

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ECT cases | Pending cases

▪ Hulley Enterprises Ltd. (Cyprus) v. Russian Federation

▪ Yukos Universal Ltd. (UK - Isle of Man) v. Russian Federation

▪ Veteran Petroleum Ltd. (Cyprus) v. Russian Federation

▪ Hrvatska Elektropriveda d.d. (HEP) (Croatia) v. Slovenia

▪ Electrabel (Belgium) v. Hungary

▪ EDF International S.A. (France) v. Hungary

▪ AES Corporation and Tau Power B.V. (the Netherlands) v. Kazakhstan

▪ Ascom S.A. (Moldova) v. Kazakhstan

▪ Khan Resources B.V. (the Netherlands) v. Mongolia

▪ Türkiye Petrolleri Anonim Ortakhgi (Turkey) v. Kazakhstan

▪ The PV Investors v. Spain

▪ Vattenfall AB (Sweden) et al v. Germany

▪ Charanne (the Netherlands) and Construction Investments (Luxembourg) v. Spain

▪ CEZ (Czech Republic) v. Albania

Outline

I. Scope of protection, basis of claim and their influence on case strategy

II. Role of the investor's home State

III. Procedural matters

IV. Appointment of arbitrators

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I. Scope of protection, basis of claim and their influence on case strategy

Facts alleged to constitute a treaty breach (awards rendered in 2012-2013)

▪ Termination of contract (including production sharing agreement)

(Sky Petroleum v. Albania; Vannessa Ventures v. Venezuela; Etectrabel v. Hungary, Occidental Petroleum v. Ecuador; Quiborax et al. v. Bolivia; Alapli Elektrik v. Turkey; Caratube International v. Kazakhstan)

▪ No payments made under contract

(Standard Chartered Bank v. Tanzania; Deutsche Bank v. Sri Lanka)

▪ Increase in taxes and/or royalties

(ConocoPhilips v. Venezuela; Pan American v. Bolivia; Burlington Resources v. Ecuador)

▪ No increase of tariffs following 2008 financial crisis

(Caraveli Cotaruse v. Peru)

▪ Regulation of prices and/or tariffs

(Slovak Gas et...