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Energy Arbitration and Judicial Dispute Settlement

Proceedings of the 4th Athens Conference on European Energy Law

by Jochen Mohr (Volume editor) Antonis Metaxas (Volume editor)
Conference proceedings 252 Pages

Summary

On September 27, 2019, the Institute for Energy and Regulatory Law Berlin and the Hellenic Energy Regulation Institute hosted in Athens an international congress on Energy Arbitration and Judicial Dispute Settlement. The contributions in this book reflect the wide range of current subjects dealt with, spanning from the representative actions in the energy sector over the landmark Achmea judgment of the European Court of Justice to the dynamic relationship between the principle of autonomy of EU Law and investment arbitration.

Table Of Content

  • Cover
  • Title
  • Copyright
  • About the editors
  • About the book
  • This eBook can be cited
  • Editors’ preface
  • Contents
  • 1 The impact of Achmea and CETA on investment arbitration: (Prof. Dr. Jochen Mohr & Dr. Konstantina Bourazeri, LL.M.)
  • Introduction
  • 1 The Achmea ruling of the ECJ
  • 1.1 Subject
  • 1.2 Key statements
  • 1.3 Legal consequences
  • 2 Opinion 1/17 of the ECJ on the CETA Agreement
  • 2.1 Subject
  • 2.2 Key statements
  • 2.3 Legal consequences
  • 3 Investment protection under the Energy Charter Treaty and ECJ jurisprudence in Achmea and CETA
  • 3.1 Overview of the Energy Charter Treaty
  • 3.2 Effects of Achmea and CETA jurisprudence on investment arbitration based on the Energy Charter Treaty
  • Conclusion in Theses
  • 2 Safeguarding the autonomy of EU Law: The impact of ISDS mechanisms after Opinion 1/17: (Prof. Dr. Antonis Metaxas)
  • Introduction
  • 1. The concept of autonomy
  • 2. The fundamental aspects of the principle of autonomy in the light of Opinion 1/17
  • 2.1 Allocation of competences
  • 2.2 The significance of the preliminary reference procedure
  • 2.3 Control over the uniform application of EU law
  • 3. Evaluating the principle of autonomy after Opinion 1/17
  • Conclusions
  • 3 Judicial settlement of disputes in the energy sector in Germany: (Wiegand Laubenstein)
  • 1 The history of German regulatory law
  • 2 Higher Regional Court of Düsseldorf
  • 3 The Lichtblick case
  • 4 Incentive regulation of the network operators – the X-factor
  • 4.1 Relevant observation period (Stützintervall)
  • 4.2 Analogue application of the provisions about individual efficiency
  • 5 Poland wins OPAL gas pipeline dispute before EU court
  • 5.1 The facts
  • 5.2 Further procedure
  • 4 Multilateral Investment Court – an alternative to energy disputes: (Theodoros Galanis)
  • Introduction
  • 1 Main criticism addressed to ISDS
  • 2 The new multilateral approach
  • 3 The Multilateral Investment Court
  • 4 Basic features of MIC – the Council mandate
  • 5 Critical issues – some reflections
  • 5.1 Critical issues – some answers
  • Concluding remarks
  • 5 Energy dispute settlement after Achmea and opinion 1/17: (Agis Chr. Georgiades)
  • Introduction
  • 1 Dispute settlement in bilateral and multi-lateral investment treaties
  • 2 Energy Charter Treaty
  • 3 The Achmea case
  • 3.1 The arguments of Slovakia and the European Commission
  • 3.2 CJEU on Achmea
  • 4 Opinion 1/17 of the CJEU on CETA
  • 5 The prevailing interpretation of Achmea
  • 6 Criticism against Achmea
  • 7 Adequacy of EU response
  • Conclusions
  • 6 The use of technically based alternative dispute resolution mechanisms in oil & gas contracts: (Louise Bouvery)
  • Introduction
  • 1 The new methods: Technical Advisory Committees, Dispute Review Boards, Sole Expert Determination
  • 1.1 General characters of the mechanisms
  • 1.1.1 Technical Advisory Committees
  • 1.1.2 DRBs
  • 1.1.3 Sole Expert Determination
  • 1.2 Dispute prevention
  • 2 Interaction between arbitration and the unconventional ADRMs
  • 2.1 Unconventional ADRMs as an alternative to arbitration
  • 2.2 Unconventional ADRMs as a prior step to arbitration
  • 3 Considering a multi-tiered dispute resolution clause
  • Conclusions
  • 7 Dispute settlement resolution mechanism in the Greek current exploration licensing rounds: (Dr. Anna Plevri)
  • 1 Disputes arising out of the exploration and exploitation of hydrocarbons and arbitration
  • 2 Latest developments in the Greek framework of exploration licensing rounds
  • 3 Legislative framework of exploration and exploitation of hydrocarbons in Greece
  • 3.1 Law 2289/1995 (Hydrocarbons Law) as amended by Law 4001/2011
  • 3.2 Presidential decree No 127/1996 and Draft Model Lease Agreement
  • 4 Calls for international tenders for the right of exploration and exploitation of hydrocarbons in areas of Greece31
  • 5 Laws 4524/2018, 4525/2018 4526/2018 and 4527/2018 on the ratification of lease agreements between the Greek State and various energy companies on the grant of the right to explore and exploit hydrocarbons in various lands or marine areas in Greece
  • 5.1 Resolution of disputes
  • 6 Variations of Law 4525/2018 on issues of the dispute settlement resolution mechanism
  • Conclusions
  • 8 The role of legal disputes and arbitration in EU’s energy security: The case of natural gas networks: (Michalis Mathioulakis)
  • Introduction
  • 1 The role of legal disputes and arbitration in natural gas imports for the European energy security
  • 2 Disputes and arbitration over gas imports in Europe
  • 2.1 The OPAL case
  • 2.2 Gazprom – PGNiG arbitration
  • 2.3 Gazprom – European Commission notice of dispute
  • 2.4 Gazprom – Naftogaz arbitration
  • Conclusions
  • 9 Claims of users concerning capacity charges of Natural Gas Transmission System. Case law: (Sofia Michelaki)
  • Introduction
  • 1 Recent arbitration cases regarding capacity charges
  • 2 Legal analysis
  • 2.1 Legislative Framework
  • 2.2 Factual background with regard to the case
  • Conclusions
  • 10 Germany’s electricity price zones and their delineations: (Peter Mussaeus & Adriane Mönch)
  • Introduction
  • 1 The General Court’s decision on capacity bookings
  • 2 Phasing out of coal-fired power plants
  • 3 The Energy Charter Treaty
  • 4 Electricity price zones
  • 4.1 The problem of loop-flows
  • 4.2 The new Article 14 Regulation (EU) 2019/943
  • 5 A conflict with § 3a StromNZV?
  • Conclusions
  • 11 The General Court’s Decision of 15 November 2018 (case T-793/14) for the annulment of the EC decision of 23 July 2014 (case S. 35980) on the Capacity Mechanism in the UK: (Alexia Trokoudi & Emmanouil Chourmousis)
  • Introductory note
  • 1 Commission’s Decision C (2014) 50831 approving the UK Capacity Mechanism
  • 1.1 The mechanism
  • 1.2 Commission’s assessment
  • 1.3 The judgment of the EU General Court
  • 2 Procedural steps before the Court – Admissibility of the action
  • 3 Court’s legal considerations on the substance of the case
  • 3.1 Concept of doubts
  • 3.2 Length of discussions between the Commission and the UK
  • 3.3 Assessment of the DSR role in the UK capacity market
  • 3.4 Discriminatory treatment of DSR in the UK capacity market
  • 4 The procedural events following the annulment of the UK capacity mechanism
  • Conclusions
  • 12 Arbitration in the construction of nuclear power plants: (Dr. Maria Lykidi)
  • 1 Main issues resulting in arbitration in the nuclear sector
  • 2 Construction arbitration in the nuclear sector – The case of EPR
  • 2.1 Olkiluoto (OL3) – Finland
  • 2.2 Flamanville – France
  • 2.3 Hinkley Point – United Kingdom
  • 3 European Court of Justice’s decision on environmental impact of lifetime prolongation of nuclear power plants – The case of Belgium and the Netherlands
  • 13 Climate-change related disputes – Overview and trends: (Alexandros Chatzinerantzis)
  • Introduction
  • Range of climate-related disputes
  • 1 Climate Enforcement Disputes
  • 1.1 Cases brought forward against government agencies to change climate policy and conduct
  • 1.2 Cases brought forward to seek damages for financial redress
  • 2 Commercial Litigation and Arbitration
  • 3 Investor-State Arbitration
  • 4 Investor and D&O claims
  • Conclusions
  • 14 Representative actions in the energy sector: (Prof. Dr. Matthias Knauff, LL.M. Eur.)
  • Introductory remarks
  • 1 Representative actions regarding environmental matters
  • 1.1 Development
  • 1.2 Design
  • 1.3 The problem of preclusion
  • 2 Proposal for a directive on representative actions for the protection of the collective interests of consumers
  • 2.1 Scope
  • 2.2 Design
  • 2.3 Consequences for the energy sector
  • Conclusions
  • 15 Consumer protection and the right to out-of-court dispute settlement in the oil & gas sector. Regulator or Ombudsman model for Energy Alternative Dispute Resolution in Europe?: (Dr. Athina Moraiti)
  • 1 Consumer rights and protection
  • 2 Oil & gas industry disputes
  • 3 Types of disputes – under examination only disputes between individuals and oil & gas companies
  • 4 Methods of dispute resolution
  • 5 Ombudsman – mediation
  • 6 Regulators’ special competences to resolve disputes
  • 7 Which is the best model for Europe to adopt in oil & gas disputes?
  • 16 Energy investments under changed circumstances: Emerging gaps and necessities in arbitration: (Dr. Kyriakos P. Papanikolaou)
  • 1 Long-term energy contracts under a change of circumstances
  • 2 The distinction between rebus sic stantibus and force majeure
  • 3 Rebus sic stantibus vs. Pacta sunt servanda
  • 4 The reluctance to invoke the principle rebus sic stantibus in arbitration procedures
  • Series index

cover

Bibliografische Information der Deutschen Nationalbibliothek
Die Deutsche Nationalbibliothek verzeichnet diese Publikation
in der Deutschen Nationalbibliografie; detaillierte bibliografische
Daten sind im Internet über
http://dnb.d-nb.de abrufbar.

Library of Congress Cataloging-in-Publication Data
A CIP catalog record for this book has been applied for at the
Library of Congress.

About the author

Jochen Mohr holds a chair for Civil Law, Competition Law, Energy Law, Regulatory Law and Labour Law at the University of Leipzig and is the executive director of the Institute for Energy and Regulatory Law Berlin.

Antonis Metaxas teaches EU, Competition and Energy Law at the University of Athens and at TU Berlin and is the acting chairman of the Hellenic Energy Regulation Institute.

About the book

On September 27, 2019, the Institute for Energy and Regulatory Law Berlin and the Hellenic Energy Regulation Institute hosted in Athens an international congress on Energy Arbitration and Judicial Dispute Settlement. The contributions in this book reflect the wide range of current subjects dealt with, spanning from the representative actions in the energy sector over the landmark Achmea judgment of the European Court of Justice to the dynamic relationship between the principle of autonomy of EU Law and investment arbitration.

This eBook can be cited

This edition of the eBook can be cited. To enable this we have marked the start and end of a page. In cases where a word straddles a page break, the marker is placed inside the word at exactly the same position as in the physical book. This means that occasionally a word might be bifurcated by this marker.

Editors’ preface

On September 27, 2019, the Institute for Energy und Regulatory Law Berlin (enreg) and the Hellenic Energy Regulation Institute hosted in Athens an international congress on Energy Arbitration and Judicial Dispute Settlement. Both editors had the pleasure of acting as the scientific coordinators/directors of this important event that gathered in Athens some of the most leading scientists in the field of Energy Regulation and Arbitration in Europe.

The contributions in this book reflect the remarkable width and depth of the subjects dealt with, spanning from the Representative Actions in the energy sector over the landmark Achmea judgment of the CJEU and its far reaching impact on Energy Arbitration to the dynamic relationship between the notion of autonomy of EU Law and judicial dispute settlement in the field of energy-related investments. Our hope is that this publication substantially contributes to the scientific discussion about the future design of arbitration in the EU and the prospects of legal protection of international investments in the European energy sector.

The editors cordially thank all the leading senior judges, practitioners and academics that contributed to this collective volume as well as the members of the Hellenic Energy Regulation Institute and of the Institute for Energy und Regulatory Law Berlin for their active support in preparing this publication, above all Dr. Konstantina Bourazeri, Michalis Mathioulakis, Till Meier and Kim Natalie Müller.

Berlin / Athens, May 2020
Prof. Dr. Jochen Mohr / Prof. Dr. Antonis Metaxas

Contents

Prof. Dr. Jochen Mohr & Dr. Konstantina Bourazeri, LL.M.

1 The impact of Achmea and CETA on investment arbitration

Introduction

1 The Achmea ruling of the ECJ

1.1 Subject

1.2 Key statements

1.3 Legal consequences

2 Opinion 1/17 of the ECJ on the CETA Agreement

2.1 Subject

2.2 Key statements

2.3 Legal consequences

3 Investment protection under the Energy Charter Treaty and ECJ jurisprudence in Achmea and CETA

3.1 Overview of the Energy Charter Treaty

3.2 Effects of Achmea and CETA jurisprudence on investment arbitration based on the Energy Charter Treaty

Conclusion in Theses

Prof. Dr. Antonis Metaxas

2 Safeguarding the autonomy of EU Law: The impact of ISDS mechanisms after Opinion 1/17

Introduction

1. The concept of autonomy

2. The fundamental aspects of the principle of autonomy in the light of Opinion 1/17

2.1 Allocation of competences

2.2 The significance of the preliminary reference procedure

2.3 Control over the uniform application of EU law

3. Evaluating the principle of autonomy after Opinion 1/17

Conclusions

Wiegand Laubenstein

3 Judicial settlement of disputes in the energy sector in Germany

1 The history of German regulatory law

2 Higher Regional Court of Düsseldorf

3 The Lichtblick case

4 Incentive regulation of the network operators – the X-factor

4.1 Relevant observation period (Stützintervall)

4.2 Analogue application of the provisions about individual efficiency

5 Poland wins OPAL gas pipeline dispute before EU court

5.1 The facts

5.2 Further procedure

Theodoros Galanis

4 Multilateral Investment Court – an alternative to energy disputes

Introduction

1 Main criticism addressed to ISDS

2 The new multilateral approach

3 The Multilateral Investment Court

4 Basic features of MIC – the Council mandate

5 Critical issues – some reflections

5.1 Critical issues – some answers

Concluding remarks

Details

Pages
252
ISBN (PDF)
9783631836446
ISBN (ePUB)
9783631836453
ISBN (MOBI)
9783631836460
ISBN (Hardcover)
9783631815885
Language
English
Publication date
2020 (December)
Tags
European Law Energy Law International Arbitration Energy Arbitration German Energy Law
Published
Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2021. 252 pp.

Biographical notes

Jochen Mohr (Volume editor) Antonis Metaxas (Volume editor)

Jochen Mohr holds a chair for Civil Law, Competition Law, Energy Law, Regulatory Law and Labour Law at the University of Leipzig and is the executive director of the Institute for Energy and Regulatory Law Berlin. Antonis Metaxas teaches EU, Competition and Energy Law at the University of Athens and at TU Berlin and is the acting chairman of the Hellenic Energy Regulation Institute.

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Title: Energy Arbitration and Judicial Dispute Settlement