Edited by Rafael Leal-Arcas
This chapter offers a commentary to Article 22 of the Energy Charter Treaty, which addresses the vexed question of the presence of state-owned and privileged enterprises in commercial operations. The chapter begins with a historical background of the dominant role played by state-owned and privileged enterprises in the energy sector. It also identifies the emerging geopolitical pattern related to the use of such type of corporations. The author deals with the theoretical and practical difficulties experienced at the international level due to the absence of a universally accepted definition of state-owned enterprises, analysing the most relevant case law such as the landmark decisions Emilio Agust'n Maffezini v. The Kingdom of Spain and Salini v. Morocco. Finally, the chapter analyses the relevant International and European legal framework in the light of the provision of Article 22, which aims at preventing a state from invoking domestic law as a defense against the violation of an international obligation in relation to contracts or other acts undertaken by state entities.
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