ICSID and the Energy Charter Treaty Frauke Nitschke

ICSID and the Energy Charter Treaty Frauke Nitschke, Team Leader/Senior Counsel, ICSID May 12, 2017

ICSID Caseload. Cases registered by type of Rules ICSID Convention Conciliation Cases 8 1, 3% [CATEGORY NAME] 544 [PERCENTAGE] [CATEGORY NAME] 54 [PERCENTAGE] [CATEGORY NAME] [VALUE] 0. 3% © 2017 by International Centre for Settlement of Investment Disputes. Content may be reproduced for educational use with acknowledgement. 2

ICSID in the ECT • Article 26(4)(a): “In the event that an Investor chooses to submit the dispute for resolution under subparagraph (2)(c), the Investor shall further provide its consent in writing for the dispute to be submitted to: (…) i. The International Centre for Settlement of Investment Disputes, established pursuant to the [ICSID Convention] (…); or ii. The International Centre for Settlement of Investment Disputes, established pursuant to the Convention referred to in subparagraph (a)(i), under the rules governing the Additional Facility (…)” © 2017 by International Centre for Settlement of Investment Disputes. Content may be reproduced for educational use with acknowledgement. 3

Basis of consent Invoked Canada-Peru FTA [PERCENTAGE] Oman-U. S. FTA [PERCENTAGE] ECT 11% Central America. Panama FTA [PERCENTAGE] Colombia-Mexico FTA U. S. -Panama TPA [PERCENTAGE] ASEAN APPI [PERCENTAGE] Canada-Colombia FTA [PERCENTAGE] NAFTA [PERCENTAGE] [CATEGORY NAME] 9. 6% BIT 61. 3% [CATEGORY NAME] 16. 8% DR-CAFTA [PERCENTAGE] © 2017 by International Centre for Settlement of Investment Disputes. Content may be reproduced for educational use with acknowledgement. 4

Status of ECT Cases at ICSID Pending Cases 70% Concluded Cases 30% © 2016 by International Centre for Settlement of Investment Disputes. Content may be reproduced for educational use with acknowledgement. 5

Nationality of Origin of ICSID Arbitrators, Conciliators and ad hoc Committee Members Non ECT-Member State 47% ECT Member State 53% ECT Member State © 2017 by International Centre for Settlement of Investment Disputes. Content may be reproduced for educational use with acknowledgement. Non ECT-Member State 6

Outcomes of Concluded ECT Cases (30 April 2017) [CATEGORY NAME] (2) [PERCENTAGE] [CATEGORY NAME] (6) [PERCENTAGE] Proceeding [CATEGORY NAME] discontinued at the request(2)of one [PERCENTAGE] party 0% [CATEGORY NAME] (4) [PERCENTAGE] [CATEGORY NAME] (5) [PERCENTAGE] Award deciding that the claims are manifestly without legal merit* © 2017 by International Centre for Settlement of Investment Disputes. 0% Content may be reproduced for educational use with acknowledgement. Proceeding discontinued at the Proceeding Initiative of the for Proceeding discontinued Tribunal discontinued for lack of payment of 0% failure of parties to the required act advances 0% 0% 7

Thank you! ICSID 1818 H Street, NW Washington, DC 20433 Tel: (202) 458 -1534 Fax: (202) 522 -2615 Email: icsidsecretariat@worldbank. org https: //icsid. worldbank. org © 2017 by International Centre for Settlement of Investment Disputes. Content may be reproduced for educational use with acknowledgement. 8