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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 26: SETTLEMENT OF DISPUTES BETWEEN AN INVESTOR AND A CONTRACTING PARTY

Fernando Dias Simões

Extract

This chapter analyses Article 26 of the Energy Charter Treaty, which regulates investor-state dispute resolution. Investors can trigger different dispute resolution mechanisms: submission of the dispute to the courts or administrative tribunals of the host state; execution of any previously agreed dispute settlement procedure; or referral of the dispute to international arbitration or conciliation. Investors can choose from a variety of arbitral fora and corresponding arbitration rules. As a rule, each contracting party gives its unconditional consent to the submission of a dispute to international arbitration. This broad scope of consent may, however, be limited in two situations: contracting states may declare that they do not consent to arbitration if the investor has already submitted the dispute to courts or administrative tribunals or in accordance with any previously agreed dispute settlement mechanism; and countries may opt out of international arbitration for disputes arising under the umbrella clause.

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