Content Join OGEMID
 
  • Linkedin
  • Twitter
  • Rss

Transnational Dispute Management

Skip navigation

Transnational Dispute Management

The network for international arbitration, mediation and ADR, international investment law and Transnational Dispute Management

Join OGEMID

Transnational Dispute Management

The network for international arbitration, mediation and ADR, international investment law and Transnational Dispute Management

  • Sign in
  • Subscribe
  • Home
  • Sign in
  • About About
    1. Home
    2. About
    3. About TDM
    4. About TDM
    5. Founding Editor T.W. Wälde
    6. T.W. Wälde
    7. Editorial team
    8. Editorial team
    9. Contributing Authors
    10. Contributing Authors
    11. Subscriptions
    12. Subscriptions
  • Journal Journal
    1. Home
    2. Journal
    3. Browse Issues
    4. Browse
    5. Articles by Category
    6. By Category
    7. Articles by Author
    8. By Author
    9. Advance publication
    10. Advance publication
    11. Specials
    12. Specials
    13. Search
    14. Search
    15. Book reviews
    16. Reviews
  • Legal & Regulatory docs. L & r docs
    1. Home
    2. Legal & Regulatory docs.
    3. L&R by Country
    4. L&R by Country
    5. L&R by Category
    6. L&R by Category
    7. L&R recent additions
    8. L&R recent additions
    9. Search
    10. Search
  • Audiovisual library AV library
    1. Home
    2. Audiovisual library
    3. Audiovisual Library
    4. Audiovisual Library
    5. TDM/OGEMID Interviews
    6. TDM/OGEMID Interviews
    7. Conference presentations
    8. Conference presentations
  • OGEMID OGEMID
    1. Home
    2. OGEMID
    3. About OGEMID
    4. About OGEMID
    5. Suggest a topic
    6. Suggest a topic
    7. Guest programme
    8. Guest programme
    9. Seminar programme
    10. Seminar programme
    11. Browse archive
    12. Browse archive
    13. Search
    14. Search
    15. Join
    16. Join
  • News & Events Events
    1. Home
    2. News & Events
    3. News
    4. News
    5. Events
    6. Events
  • Subscribe
Home > News & Events > News > TDM Call for Papers: National Courts as a Forum for the Resolution of Disputes under Article 26 Energy Charter Treaty

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,

and

  • 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 info@transnational-dispute-management.com.

John P. Gaffney

John P. Gaffney
Al Tamimi & Company
View profile
Contact info here

Dr. iur Ricard Happ

Dr. iur Ricard Happ
Luther Rechtsanwaltsgesellschaft mbH
View profile
Contact info here

Lucia Raimanova

Lucia Raimanova
Allen & Overy
View profile
Contact info here

Anna-Maria Tamminen

Anna-Maria Tamminen
Hannes Snellman Attorneys Ltd
View profile
Contact info here

Dr. Catharine Titi

Dr. Catharine Titi
French National Centre for Scientific Research (CNRS) & CERSA, University Paris II Panthéon-Assas
View profile
Contact info here

An abstract of the proposed paper should be submitted at your earliest convenience.  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.

More news in the archive.

Call for contributions

TDM Call for Papers: Sanctions and International Arbitration: Impact on Substantive and Procedural Issues

Ali Burney, Rinat Gareev, Kiran Nasir Gore, Dini Sejko, Prof. Joel Slawotsky, May Tai

  • Ali Burney
  • Rinat Gareev
  • Kiran Gore
  • Dr Dini Sejko
  • Prof. Joel Slawotsky
  • May Tai

TDM Call for Papers: National Courts as a Forum for the Resolution of Disputes under Article 26 Energy Charter Treaty

John P. Gaffney, Dr. iur Richard Happ,
Lucia Raimanova, Anna-Maria Tamminen, Dr. Catharine Titi

  • John P. Gaffney
  • Dr. iur Ricard Happ
  • Lucia Raimanova
  • Anna-Maria Tamminen
  • Dr. Catharine Titi

TDM Call for Papers: International Investment Arbitration - Environmental Protection and Climate Change Issues

Professor Dr A F M Maniruzzaman, Wendy J. Miles QC, Carla Lewis, Dr Stephen Minas

  • Professor Dr A F M Maniruzzaman
  • Wendy J. Miles QC
  • Carla Lewis
  • Dr Stephen Minas

TDM Call for Papers: The African Continental Free Trade Agreement (AfCFTA)

J. Chaisse, J. Górski, E. Laryea, M.M. Mbengue, and K. Olaoye

  • Prof. Julien Chaisse
  • Dr. Jedrzej Gorski
  • Prof. Emmanuel Laryea
  • Prof. Makane Moïse Mbengue
  • Kehinde Olaoye
  • More
  • Contribute

Advance publication

Current Trends in the Investment Environmental Jurisprudence and Predictions for Investment Disputes Involving Climate Change

24 Jan 2023

A. Frosch, W. Giemza

  • A. Frosch
  • W. Giemza

Climate Change and the Territoriality of International Investment Agreements

20 Jan 2023

W.J. Simonsick

  • W.J. Simonsick

International Investment Arbitration and the Environment: In the Search for Coexistence

20 Jan 2023

M.J. Monroy Valencia

  • M.J. Monroy Valencia
  • More
  • Contribute

Stay connected

Sign up for our email alerts.

  • Issues
  • Advance publication
  • News
  • Linkedin
  • Twitter
  • RSS

Join the debate

Want to join OGEMID, the leading on-line discussion platform for international dispute resolution?

Simply fill in the registration form to start your trial membership.

Download the app

  1. App store
  2. Google play

The Transnational Dispute Management Journal (TDM, ISSN 1875-4120) and OGEMID listserv focus on recent developments in the area of (investment) arbitration and dispute management, regulation, treaties, judicial and arbitral cases, voluntary guidelines, tax and contracting. Read our Terms & Conditions here, and our Privacy Policy here.

About TDM

  • Terms & Conditions
  • Contribute
  • Subscriptions
  • Contact
  • Help

Other publications

  • Oil, Gas & Energy Law Intelligence (OGEL)
  • Transnational Arbitration Observer (TAO)

© 2004 - 2023. Published by MARIS.

  • Home
  • Contribute
  • Subscriptions
  • Contact
  • Help