About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

10 J. World Investment & Trade 39 (2009)
The Nationality Rules under the Energy Charter Treaty: Practical Considerations

handle is hein.journals/jworldit10 and id is 39 raw text is: The Nationality Rules under the Energy Charter Treaty: Practical Considerations Dominique D'ALLAIRE1 This article is dedicated in memoriam of Professor Thomas Willde whose enthusiasm for the Energy Charter Treaty and whose personal invitation to write this article have contributed to its completion. The Energy Charter Treaty (ECT or Treaty) is a multilateral investment protection treaty dedicated to the energy sector. The Treaty came into force in 1998, yet it is still in its infancy. Only 20 arbitration cases have been reported and membership in the Treaty is still relatively small. Preparing and arguing ECT cases is pioneering work; however, it is of critical importance in shaping both the interpretation and the scope of some of the Treaty's provisions. Perhaps because they realise the importance of that work, commentators have been particularly active and have expressed opinions on a variety of aspects of the ECT. However, key aspects of the nationality of the investors under the ECT have not been considered at length by commentators. Nationality is important both to establish the jurisdiction of the arbitration tribunal constituted under the ECT as well as to determine investors' rights and obligations under the ECT. This paper outlines the approach taken by various tribunals concerning the nationality determination and proposes various criteria that may lead to a more consistent and predictable exercise of the discretionary power of states concerning the denial of the benefits of nationality. The analysis will be limited to the criteria relating to the nationality of the claimant seeking to use the settlement of dispute mechanism of article 26(1) of the ECT. The paper is organized as follows: Part 1 covers the requirements of the ECT in relation to the definition of investor. Part 2 covers the main requirements commonly found under investment treaties for the determination of nationality and the interpretation given to those nationality tests. The denial of national status for reasons of lack of substantial business activities will be reviewed in Part 3 and possible criteria for its application will be explored in Part 4. I Dominique D'Allaire B.A. (Honours) York University, LL.B. University de Sherbrooke, M.Fisc. Universit6 de Sherbrooke, is an associate at Freshfields Bruckhaus Deringer LLP in Frankfurt. He spent several years working for the government of Canada principally in international and treaty negotiations. He can be reached at dominique.dallaire@freshfields.com. The author wishes to thank Ray Boomgaardt from the Department of International Trade Canada for his thoughtful comments on soume issues addressed in this paper.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most