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10 J. World Energy L. & Bus. 1 (2017)

handle is hein.journals/jlowdeylw10 and id is 1 raw text is: Journal of World Energy Law and Business, 2017, 10, 1-13 doi: 10.1093/jwelb/jww036 Advance Access Publication Date: 4January 2017 Article Against 'lex petrolea' Terence Daintith* ABSTRACT Since 1998, there has been a small but steady flow of articles employing the concept of 'lex petrolea' to evoke the existence of a distinct, and distinctive, group of rules that govern-or might govern- international petroleum transactions and relationships, alongside applicable national and interna- tional law. This article argues that we should dispense with this concept, on the grounds that it is ill-defined, that there is little or no evidence to support the claims made for it, that it lacks any sound theoretical basis, and that it may be capable of employment in a way that damages legitimate inter- ests of petroleum host states. We should certainly continue to look for common elements in interna- tional industry, state and arbitral petroleum practice that might guide future policy, agreements and dispute settlement in the field, but these can be adequately described in ordinary English ('trans- national petroleum law') instead of bad Latin. 1. INTRODUCTION In the specialized literature of the law relating to oil and gas and to arbitration, the term 'lex petrolea' has been occurring with increasing frequency since the end of the last century. This article looks at the develop- ing use of this locution, attempts to identify what its users mean by it, and argues that it is inappropriate, is at best unhelpful and at worst pernicious, and would be best abandoned. 2. LEGAL 'SUBJECTS' In general To understand why it is worthwhile to engage in an argument about terminology, it will be helpful to say a word about how 'subjects' or classifications of legal material come to be used as a basis for legal study and teaching. The creation of an attractive label for an idea or group of ideas is a key move in any campaign for their intellectual acceptance. Get people to accept and use the label, and you enhance the status of the ideas and can drive forward the project of securing wider recognition for the interests they reflect. Within the legal academy, this is a commonplace phenomenon, well exemplified by the process of creating new legal 'subjects' for study and teaching by assembling a corpus of rules bearing on a selected subject matter and giving it an appealing title. Titles such as 'Environmental Law' or 'Labour Law' are suggestive of a conceptual unity or at least coherence in the relevant legal material sufficient to justify carving out a space in research classifications, in teaching curricula and, ultimately, in the organization of legal practice. These titles of course refer to the subject matter of the legal rules they refer to, rather than their formal characteristics, so that the implicit claim to coherence must depend on the coherence of the subject matter itself. * Terence Daintith, Professorial Fellow, Institute of Advanced Legal Studies, University of London. This is a revised and expanded version of a presentation to the Swansea-Texas Symposium, 'Lex Petrolea - Myth or Reality?' held in London on 21 June 2016. Grateful thanks go to Professor Baris Soyer and to Dr Nima Mersadi-Tabari for their invitation to participate. © The Authors 2017. Published by Oxford University Press on behalf of the AIPN. All rights reserved. . 1

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