Recent Developments in Energy Arbitration 2 nd Vienna Forum on European Energy Law

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1 Recent Developments in Energy Arbitration 2 nd Vienna Forum on European Energy Law Vienna, 14/03/2014 Lawyer Dr Peter Gussone

2 About us BBH has been operating as a law firm since We are a partnership of lawyers, auditors and tax consultants with engineers and further experts in our Becker Büttner Held Consulting AG. A staff of over 500 employees, including more than 250 professionals, are at your service. We provide advice to more than 3,000 clients. We are the leading law firm for the energy and infrastructure industry. BBH is known as the law firm of public utilities, which we really are. But we are far more than that, in Germany and in Europe. The decentralised utilities, the industry, investors, intermediaries and political bodies, like the European Commission, the Federal Government, the Federal States and public corporations and many more appreciate BBH s work /

3 Dr Peter Gussone, Rechtsanwalt / Lawyer Dr Peter Gussone Lawyer Partner Counsel Contact: Tel.: 030/ Born in Cologne in 1976 Studies of law, history and politics in Bonn, Lausanne and Cologne Research associate at the Institute for Insurance Law, University of Cologne Doctoral degree in European Law, University of Cologne Research associate at the Institute for State and Administrative law, Environmental and European Law, Humboldt University Legal traineeship at the Kammergericht (Higher Regional Court) in Berlin with stages, i. a., at the Federal Ministry of Justice and the United Nations High Commissioner for Refugees (UNHCR) in Vienna 2006 to 2008 lawyer at BBH Berlin 2008 to June 2011 specialist advisor at the Federal Cartel Office in Bonn Since July 2011 lawyer at BBH Berlin Wide-ranging publishing and lecturing activities Deputy editor-in-chief of the journal Zeitschrift für das gesamte Recht der Energiewirtschaft (EnWZ) Areas of Practice: Cartel and competition law, water law, energy industry law, public commercial law, European law, Alternative Dispute Resolution 3

4 Table of contents I. Investment protection in the Energy Sector 1. Energy Charter Treaty 2. Institutions (ICSID, EACS) II. Case-Studies 1. Vattenfall vs. Federal Republic of Germany 2. CEZ vs. Albania 3. Albania vs. CEZ III. Conclusions 4

5 Investment protection under the ECT (I) Energy Charter Treaty signed in 1994 Entry into force 16 April 1998, currently 53 signatory parties Purpose of the ECT Article 2: to establish a legal framework in order to promote longterm cooperation in the energy field Preamble: encourage economic growth through the adoption of measures to liberalise investment and trade in energy Investment Promotion and Protection (Part III, Art. 5 & Arts ) Art. 10: encourage and create stable, equitable, favourable and transparent conditions ( ) to accord at all times ( ) fair and equitable treatment 5

6 Investment protection under the ECT (II) Dispute Settlement, (Part V, Arts. 26, 27 & 29) Cooling-off period: 3 months after the requested amicable settlement Claimant s Options: national courts previously agreed dispute settlement procedure treaty arbitration: ICSID ad hoc arbitration under UNCITRAL Rules Stockholm Chamber of Commerce ECT also binding for almost all Member of the Energy Community (EC); EC-Treaty does not provide for state-investor dispute resolution clauses 6

7 ICSID (International Centre for Settlement of Investment Disputes) ICSID is an international arbitration institution which facilitates arbitration and conciliation of legal disputes between international investors The ICSID is a member of the World Bank Group and is headquartered in Washington, D.C., United States Recently: 185 cases pending Legal effects of the decision: binding irreversible enforceable 7

8 EACS (Energy Arbitration Center Switzerland) The EACS concentrates on alternative dispute resolution (arbitration, mediation, adjudication) in the field of energy and resources disputes The primary aim is to provide disputing parties with an alternative dispute resolution one-stop shop Model clauses in accordance with UNCITRAL Rules, but open for all arbitration rules A highly specialised institution with an open list of specialised arbitrators in the field of energy law Awards are enforceable internationally, e.g. the New York Convention

9 Vattenfall vs. Federal Republic of Germany (I) First legal dispute in 2006 over power plant Moorburg due to strict environmental specifications àsettlement Second legal dispute in 2012 over German nuclear phase-out and German Kernbrennstoffsteuer (nuclear fuel tax): ICSID-Case ARB/12/12 Other major German reactor operators had to call on the national courts (regarding the tax, BBH represents the Ministry of Finance): both proceedings are still pending à ICSID and a national German court decide about the same subject-matter at the same time 9

10 Vattenfall vs. Federal Republic of Germany (II) For Vattenfall as a foreign (Swedish) investor the international protection of investment rules of the ECT apply Accusation: due to the nuclear phase-out and the Kernbrennstoffsteuer, Art. 10 ECT has been violated (expropriation and/or no fair and equitable treatment) Value of the claim: 3.7 billion Status of the proceeding: pending after new composition of the tribunal in Feb àarbitrator withdrew because of a conflict of interest 10

11 CEZ vs. Albania CEZ as a foreign investor acquired a major stake in Albania s sole electricity distributor, therefore the international investment protection rules of the ECT and a bilateral investment treaty apply Accusation: violation of the ECT and the bilateral investment treaty by revoking a business licence Value of the claim: 190 million Status: pending 11

12 Albania vs. CEZ Albania is about to file a claim based on an ICCclause in the bilateral investment treaty Violation of treaty provisions, in particular of the maintenance and investment obligations regarding the power distribution grids Status: filing of compliant most likely in Vienna 12

13 Conclusions Arbitration is a leading method for resolving disputes arising from private commercial agreements With arbitration being the means to solve conflicts arising from investments in the energy sector based on investment treaties, states are increasingly getting involved in such proceedings Does the sole focus on investors interests neglect legitimate public interests? Is there a need for a specialised arbitration institution in the energy sector? Is there a need for a dispute resolution mechanism in the Energy Community? 13

14 Thank you for your attention! Contact : Lawyer Dr Peter Gussone BBH Berlin Magazinstraße Berlin Tel.: Fax: BBH München Pfeuferstraße München Tel.: Fax: BBH Köln KAP am Südkai Agrippinawerft Köln Tel.: Fax: BBH Stuttgart Industriestraße Stuttgart Tel.: Fax: BBH Brüssel Avenue Marnix Brüssel/Belgien Tel.: Fax.: BBH Hamburg Kaiser-Wilhelm-Str Hamburg Tel.: Fax:

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