Nabizade Gunel Eldaniz,
2nd year master’s student, Maritime and Energy law, Law Faculty, Baku State University
E-mail: [email protected]
Introduction
It is known that the Energy Charter Treaty (ECT) was adopted and opened for signature together with the Protocol on Energy Efficiency and Related Environmental Aspects (PEEREA) in Lisbon in December 1994 in order to ensure the implementation of the European Energy Charter adopted in December. In 1991, in The Hague, he announced the development of cooperation in the energy sector between East and West. PEEREA entered into force in April 1998 after ratification by the first thirty states.
As of July 1, 2013, 47 countries and the European Union (the European Union and the European Atomic Energy Community) are parties to the Energy Charter Treaty. The European Union (EU) and the European Atomic Energy Community (Euratom) are independent parties to the ECT, but according to Articles 42 and 44 of the ECT, the Union’s act of confirmation of accession to the ECT is not an act of ratification. In addition to the EU and EURAT, all EU member states, some non-EU European states (especially Switzerland, the former Yugoslav Republic of Macedonia, Bosnia and Herzegovina), most member states of the Commonwealth of Independent States (CIS), Afghanistan, Mongolia, Turkey , Japan, etc. Belarus, a signatory to the ECT, has refrained from ratification for the time being and is applying it provisionally. Russia also signed the ECT, decided on provisional application pending ratification, but never ratified the ECT in 2009, suspended its provisional application but did not withdraw its signature. In addition, Australia, Iceland and Norway have signed the ECT but have not yet ratified or promulgated a provisional application.
At the same time, 25 countries, including Indonesia, Jordan, USA, Canada, Algeria, Bahrain, Venezuela, etc. and 10 international organizations, including the Association for Economic Cooperation of Southeast Asian Nations (ASEAN), the European Bank for Reconstruction and Development, the World Bank, the World Trade Organization (WTO), the CIS Electricity Council, etc. has observer status at the Energy Charter Conference, which ensures the implementation of relevant agreements and protocols and forms the Energy Charter Secretariat.
Investor-state dispute resolution under the energy agreement
The issue of settlement of investment disputes under the ECT is not only of theoretical interest (study of general issues of dispute settlement, comparative research in the field of settlement of investment disputes, etc.), but also of practical interest, because Russian investors operate in countries where the ECT is applied, Russia arbitration of investment disputes for which it is responsible continues, not to mention the fact that Russia has not completely withdrawn from participation in the Energy Charter Treaty (as evidenced by its retention of signature). The treaty and the final decision on ratification (or non-ratification) of the treaty will undoubtedly take into account all circumstances, including those related to the settlement of investment disputes [15, p.205].
Article 29 ECT and Annex D to the Energy Charter include a similar mechanism to WTO(World Trade Organization) procedures for the settlement of trade disputes between States Parties, provided that at least one of them is not a WTO member. Article 7, paragraph 7, provides for a specialized conciliation mechanism for transit disputes, which allows for a fairly speedy procedure [2, p.3].
Regarding disputes over competition issues (Article 6) and environmental problems (Article 19), the ECT provides mechanisms for bilateral (in the case of competition) or multilateral (in the case of environmental protection) consultations.
The ECT is no exception to the general rule of providing for the choice of international arbitration for the settlement of disputes between an investor and a host state. The right of the investor to apply to one of the international arbitrations of his choice to resolve the dispute with the host state, which has jurisdiction recognized in advance by this state, is provided not only in multilateral, but also in bilateral international agreements on foreign investments. However, some international agreements have the option of arbitration. In particular, according to Article 11 of the CIS Convention on the Protection of Investors’ Rights dated March 28, 1997, “disputes related to the implementation of investments within the framework of this convention shall be settled by the courts or arbitration of the participating countries considered by the courts [14, p.870]. In other words, under the Convention referred to, the choice of arbitral tribunal to apply for the settlement of an investment dispute is practically unlimited [6, p.63].
In accordance with paragraph 5 of Article 1 of the Law of the Republic of Moldova No. 24XVI of February 22, 2008 “On International Commercial Arbitration” (as amended by Laws No. 163 of July 22, 2011 and No. 29 of March 6), 2012 ), “this law does not affect the provisions of other laws of the Republic of Moldova, so certain disputes cannot be submitted to arbitration.” According to subparagraph “b” of paragraph 2 of Article 37 of this Law, the arbitration decision can be annulled by the court if it determines that the subject of the dispute cannot be resolved in accordance with the legislation of the Republic of Moldova [17].