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COMMENTARY ON THE ENERGY CHARTER TREATY

RAFAEL LEAL-ARCAS

The Commentary on the Energy Charter Treaty (ECT) provides a unique, article-by-article, textual analysis of this important international agreement. The ECT outlines a multilateral framework for cross-border cooperation in the energy sector based on the principles of open competitive markets and sustainable development.
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ARTICLE 15: SUBROGATION

Apurva Mudliar

Extract

Article 15 of the ECT contains the subrogation clause which provides for the transfer of rights that foreign investors might have vis-à-vis the host country to the insurance agency of the home State (or the home State itself) which indemnifies the foreign investor under an investment insurance or guarantee. By virtue of Article 15, the host party is obliged to recognise assignment of all the rights and claims to the indemnifying party. The indemnifying party shall receive the same treatment and the same payments due pursuant to those rights and claims as the investor (party indemnified) was entitled to receive by the ECT in respect of the investment concerned under all the circumstances. Also, the contracting Party is not allowed to assert the received indemnification pursuant to an investment insurance or guarantee as a defence, counterclaim, right of set-off in any proceeding under Article 26.

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