Jurisdictional limits of the Energy Charter Treaty and its interplay with related treaties and arbitration rules: the notion of investor

Abstract

The boom of bilateral investment treaties and trade agreements came with an increasing number of disputes between investors and states related to actions and omissions of states in respect of the protection of investors and their investments. These instruments made a significant contribution to the development and implementation of an economic and legal framework for the promotion and safeguard of investors and investments. They also played an important part in and improved the access of investors to dispute resolution mechanisms – and, in particular, to arbitration – for the protection of their investments. In this vast network of treaties and agreements aspiring to offer investors proper conditions for a stable and predictable investment environment, the Energy Charter Treaty (ECT) stands out as a unique multilateral treaty aimed at facilitating transactions and investments in the energy field. The ECT came to life soon after the fall of the communist regimes across Europe and the dissolution of the Soviet Union, and it was motivated by the desire of the Western European states to secure their access to the much needed natural resources of the Eastern countries. This Thesis undertakes the challenging task of clarifying the notion of ‘Investor’ within the ECT’s framework and its related treaties and arbitration rules. The notion of ‘Investor’ is essential for the substantive and procedural protection of Investors and their Investments. Although the ECT provides for a definition of Investor, the notion of ‘Investor’ goes beyond this definition: it is shaped not only by the provisions of the ECT, but also by the related treaties and rules under the Investor–Contracting Party dispute resolution mechanism. It is also fundamental for the understanding of the notion of ‘Investor’ to consider it as it naturally interacts with the concepts of ‘Contracting Party’ and ‘Investment’. The notion of ‘Investor’ has two essential characteristics: it is challenging to assign it with a precise definition – any attempt to define this notion will not comprehensively encompass all its features; and it is a flexible notion, tailored to suit the treaties and rules interacting with the ECT. The intrinsic complexity of the notion of ‘Investor’ is amplified by web of provisions of the ECT, not always comprehensible and straightforward. The speed of the ECT’s negotiation was the determinant factor that contributed to the entry into force of the ECT, but also led to a compromise treaty. In this context, it is mandatory that the proper interpretation and analysis of the notion of ‘Investor’ be made in the light of the rules of treaty interpretation of the Vienna Convention on the Law of Treaties.