TDM Call for Papers: National Courts as a Forum for the Resolution of Disputes under Article 26 Energy Charter Treaty
3 November 2021
Call for papers for a Special Issue of Transnational Dispute Management (TDM, ISSN 1875-4120) titled "National Courts as a Forum for the Resolution of Disputes under Article 26 Energy Charter Treaty".
The Energy Charter Treaty ("ECT") offers investors the choice between three fora for the resolution of disputes under Article 26 (1) ECT: national courts or tribunals, previously agreed methods of dispute resolution, or arbitration under Article 26 (4) ECT.
In its Komstroy judgement (Case C-741/19), the Grand Chamber of the Court of Justice of the European Union (the "Court") considered that the ECT formed part of EU law (since the EU had ratified the ECT) and that in intra-EU disputes the arbitration option would be incompatible with primary EU law.
The Court did not consider the ECT as such to be incompatible with EU law. Consequently, and leaving the question of the relevance of the judgment for ICSID arbitrations aside, investors from one EU Member State may still submit disputes with another EU Member State to the national courts of those Member States. Those courts then could and would have to submit questions relating to EU law to the Court under Article 267 TFEU (the "preliminary reference procedure").
There is little case law on how such proceedings work and virtually no literature. The ECT itself gives little guidance, as its provisions on procedure, applicable law and enforcement only pertain to arbitration proceedings. Even a cursory review leads to the following questions:
- Is the ECT applicable at all before national courts and tribunals? The role of international law before national courts and tribunals may be different in each Contracting Party to the ECT (depending on, for example, whether it adopts a monist or dualist approach). While Understanding No. 16 to the ECT clarifies that the investment protection provisions of the ECT need not be transformed into national law to be applicable, this provision might or might not be binding on national courts.
- Do investors have standing before the courts and tribunals of Contracting Parties? Where investors have aborted arbitration proceedings under the ECT, can they initiate court proceedings in respect of the same claims? Do national rules on time limits/bars for initiating proceedings apply to ECT claims?
- Which courts and tribunals have competence? Do the courts of the home state have competence? Do the courts of the host state have competence? Do the civil courts or administrative courts (to the extent such a distinction exists in any given Contracting Party) have competence? Does it depend on the remedy sought?
- How are such claims to be initiated? Do national statutory and/or judicial rules and procedures require to be amended to enable such claims to be brought (to the extent that they do not already address such claims)?
- What remedies are available to investors? Under international law, prospective remedies include restitutio in integrum and compensation, with arbitrations almost exclusively awarding compensation where a State is found to have breached international law. However, under national legal systems, compensation claims for breach of international law may not be foreseen.
- What rank does the ECT have in national court (or tribunal) proceedings? In an ECT arbitration, the ECT is the governing law and yardstick by which national law is assessed. However, the rank of international law in national laws might differ, and it is by no means uncommon that legal orders simply consider that subsequent national laws can override international law ("treaty override").
- Do ECT court judgements (or decisions of tribunals of member states) enjoy special treatment as regards recognition and enforcement?
- What role does EU law and its instruments play in the context of the above questions?
These - and other pertinent issues - could be reviewed both from national and international law perspectives. Consequently, we are inviting submissions
- discussing these questions from the perspective of individual legal systems of EU Member States,
- discussing these questions from the perspective of the ECT and applicable international law.
Timeline and submission guidelines
Proposals, along with authors' profiles (150-200 words), should be submitted to the editors John Gaffney, Richard Happ, Lucia Raimanova, Anna-Maria Tamminen and Catharine Titi via email and copied to firstname.lastname@example.org.
An abstract of the proposed paper should be submitted at your earliest convenience and no later than 15 December 2021. Final papers should be submitted by 30 March 2022. The release of the special issue is planned for the first quarter of 2022.
Authors writing on individual legal systems of EU Member States should consider the attached questionnaire (DOCX) when writing the resume.
Articles accepted for publication before this deadline will also go through TDM's on-line advance publication process, allowing your work to reach its target audience as soon as the paper completes peer review and the editing process.
The minimum word count for articles is 5,000 words (excluding footnotes, endnotes, appendices, tables, summary etc.). Articles must include a short summary of the key points addressed and any conclusions drawn (150-200 words). The layout of the articles should conform to TDM's submission guidelines, available at: www.transnational-dispute-management.com/contribute.asp (more information available upon request).
For citations, follow OSCOLA (4th Edition): www.law.ox.ac.uk/research-subject-groups/publications/oscola
Feel free to forward this call for papers to colleagues who may be interested in contributing to the special issue.
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