The Energy Charter Treaty (ECT) Remains the Most Frequently Invoked IIA

Information about the claims has been compiled on the basis of public sources, including specialised reporting services. Since 2001, when the first case invoking ECT was registered, the Energy Charter Secretariat tracked 121 publicly known investment arbitration cases where the ECT was invoked (sometimes together with a BIT). As arbitrations can be kept confidential, the actual number of disputes is likely to be higher. The Secretariat welcomes any additional information or clarification on specific cases (legalaffairs@encharter.org).

Of all cases, 77 have been brought before The International Centre for Settlement of Investment Disputes (ICSID), 24 before the Stockholm Chamber of Commerce (SCC), 10 before ad hoc arbitration tribunals under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) tribunals and 10 before the Permanent Court of Arbitration (PCA) (applying UNCITRAL rules).

Of these, 69 are pending, 41 have been concluded by arbitral awards, 2 were discontinued, 1 was withdrawn and 8 more cases have been settled by the parties (including 4 consent awards, i.e. arbitral awards rendered by an arbitral tribunal to record a settlement agreement between the parties).

In 9 cases the tribunal has denied jurisdiction, in 12 cases no breach of the ECT obligations was found, and in 2 cases the arbitral tribunal found a breach of the ECT obligations but no damages were awarded. In 18 cases the tribunal awarded damages to the investors (though some of the awards have been set aside pending appeal). Finally, in 4 additional cases, a settlement agreement was embodied in an award.

Of 121 cases, 63% is decided by the arbitrators from the USA (15%), UK (13%), France (11%), Canada (7%), Germany (6%), Sweden (6%) and Italy (5%).

There are only fourteen female arbitrators involved in the resolution of ECT cases, one of them ranks the top of arbitrators by the number of appointments.

Since 2013 the Energy Charter Secretariat has been actively promoting the use of good offices and mediation for the settlement of investment disputes under the ECT. In 2016, the Energy Charter Conference endorsed a Guide on Investment Mediation (prepared in cooperation with the International Mediation Institute, SCC, PCA, ICSID, ICC and UNCITRAL) and encouraged Contracting Parties to consider to use mediation on voluntary basis as one of the options at any stage of the dispute to facilitate its amicable solution and to consider the good offices of the Energy Charter Secretariat. The Conference also welcomed the willingness of the Contracting Parties to facilitate effective enforcement in their Area of settlement agreements with foreign investors in accordance with the applicable law and the relevant domestic procedures. The same year 2016, the Secretariat established a Conflict Resolution Centre to provide assistance and support in connection with good offices and mediation in relation to investment disputes or to disputes between Contracting Parties regarding the interpretation or application of the Treaty. In 2018, the Energy Charter Conference approved the Model Instrument on Management of Investment Disputes together with its Explanatory Note. The Model Instrument could be used by States for implementing their own domestic framework or as a guidance in relation to legal and practical issues that need to be considered for an effective and comprehensive management of International Investment Disputes (including an effective use of negotiation, mediation and conciliation).