The international regulation of energy is complex, involving various legal frameworks such as economic agreements, environmental conventions, and dispute resolution mechanisms. These instruments often overlap and may not align, creating challenges for addressing energy-related issues. The United States–Mexico–Canada Agreement (USMCA) exemplifies these complexities. It addresses entitlements to natural resources, protection of energy-related transactions, cross-border energy policies, and environmental externalities. However, the USMCA does not fully resolve conflicts among differing policy goals within the energy sector. This article examines how the USMCA navigates issues related to resource entitlements, energy transactions, policy clashes, and environmental concerns. It argues that the absence of a unified energy policy leaves disputes to be balanced by resolution bodies, such as arbitration panels. The article scrutinizes each aspect of the USMCA’s approach and discusses potential mechanisms for resolving policy conflicts. The USMCA’s treatment of energy-related matters underscores the intricate interplay between international economic law and the energy sector, with implications for regional competitiveness and sustainability.
{"title":"Contradictions and tensions in the way the USMCA regulates energy","authors":"Guillermo J Garcia Sanchez","doi":"10.1093/jiel/jgad036","DOIUrl":"https://doi.org/10.1093/jiel/jgad036","url":null,"abstract":"The international regulation of energy is complex, involving various legal frameworks such as economic agreements, environmental conventions, and dispute resolution mechanisms. These instruments often overlap and may not align, creating challenges for addressing energy-related issues. The United States–Mexico–Canada Agreement (USMCA) exemplifies these complexities. It addresses entitlements to natural resources, protection of energy-related transactions, cross-border energy policies, and environmental externalities. However, the USMCA does not fully resolve conflicts among differing policy goals within the energy sector. This article examines how the USMCA navigates issues related to resource entitlements, energy transactions, policy clashes, and environmental concerns. It argues that the absence of a unified energy policy leaves disputes to be balanced by resolution bodies, such as arbitration panels. The article scrutinizes each aspect of the USMCA’s approach and discusses potential mechanisms for resolving policy conflicts. The USMCA’s treatment of energy-related matters underscores the intricate interplay between international economic law and the energy sector, with implications for regional competitiveness and sustainability.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139463502","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"From pledges to neglect: treaties and the rule of law promise","authors":"L. Poulsen","doi":"10.1093/jiel/jgad047","DOIUrl":"https://doi.org/10.1093/jiel/jgad047","url":null,"abstract":"","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139385497","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Amid the Ukraine war, the energy transition has reached a critical juncture: decisions taken by key governmental or commercial actors may irreversibly threaten efforts to limit the rise in global average temperature to 1.5°C. After defining the notions of ‘energy transition’ and ‘critical juncture’, this article describes how the ‘international law of energy’ may both entrench a socio-technical regime based on fossil fuels and promote the transition towards renewable energy. These categories serve to frame several contributions to a symposium, which assist in mapping the rules, processes, and institutions that organize the decisional options of key actors as they try to drive the energy transition through this critical juncture. We conclude by recalling the practical utility of this dynamic map and the pressing need for an authoritative compass to give interpretive direction to the legal organization of the entitlements, obligations, and decisional options of key actors in reorienting energy activities to avoid the catastrophic tipping points of climate change.
{"title":"The energy transition at a critical juncture","authors":"Oliver Hailes, J. Viñuales","doi":"10.1093/jiel/jgad045","DOIUrl":"https://doi.org/10.1093/jiel/jgad045","url":null,"abstract":"\u0000 Amid the Ukraine war, the energy transition has reached a critical juncture: decisions taken by key governmental or commercial actors may irreversibly threaten efforts to limit the rise in global average temperature to 1.5°C. After defining the notions of ‘energy transition’ and ‘critical juncture’, this article describes how the ‘international law of energy’ may both entrench a socio-technical regime based on fossil fuels and promote the transition towards renewable energy. These categories serve to frame several contributions to a symposium, which assist in mapping the rules, processes, and institutions that organize the decisional options of key actors as they try to drive the energy transition through this critical juncture. We conclude by recalling the practical utility of this dynamic map and the pressing need for an authoritative compass to give interpretive direction to the legal organization of the entitlements, obligations, and decisional options of key actors in reorienting energy activities to avoid the catastrophic tipping points of climate change.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2023-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138949319","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Over the past decades, the China–Russian energy partnership has become firmly established. Significant milestones such as the 2009 oil and the 2014 gas deals demonstrate the geopolitical impact of this partnership. The article finds that the China–Russian energy cooperation uses a partnership-based relational approach that eschews rulemaking by treaty. Instead, the legal framework of this partnership is multi-layered and has distinct features. It relies heavily on bilateralism, pragmatic cooperation, and non-binding commitments. A range of instruments applies at the bilateral level, including a bilateral investment treaty, energy cooperation agreements, intergovernmental agreements on significant energy deals, and many joint communiques and statements of a soft law nature. Regarding regional energy governance, China and Russia prefer different approaches, as reflected in their participation in the Shanghai Cooperation Organization, the Eurasian Economic Union, and the Belt and Road Initiative. While these regional mechanisms contribute to the energy partnership, their impact on the legal framework is limited.
{"title":"International law in the China–Russian energy partnership: mapping the partnership-based relational approach","authors":"Yuanyuan Zhang","doi":"10.1093/jiel/jgad041","DOIUrl":"https://doi.org/10.1093/jiel/jgad041","url":null,"abstract":"Over the past decades, the China–Russian energy partnership has become firmly established. Significant milestones such as the 2009 oil and the 2014 gas deals demonstrate the geopolitical impact of this partnership. The article finds that the China–Russian energy cooperation uses a partnership-based relational approach that eschews rulemaking by treaty. Instead, the legal framework of this partnership is multi-layered and has distinct features. It relies heavily on bilateralism, pragmatic cooperation, and non-binding commitments. A range of instruments applies at the bilateral level, including a bilateral investment treaty, energy cooperation agreements, intergovernmental agreements on significant energy deals, and many joint communiques and statements of a soft law nature. Regarding regional energy governance, China and Russia prefer different approaches, as reflected in their participation in the Shanghai Cooperation Organization, the Eurasian Economic Union, and the Belt and Road Initiative. While these regional mechanisms contribute to the energy partnership, their impact on the legal framework is limited.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2023-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138821416","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The European Union (EU) faces a pressing, multi-level energy crisis propelled by the perfect storm of Russia’s war in Ukraine and rapidly progressing climate change. As a result, the EU is scrambling to ensure it has sufficient energy supplies for the foreseeable future while reinventing its energy strategy in the long term. Since the EU is at a critical juncture for squaring EU energy security with European and international legal commitments, this article surveys this radical shift and its consequences. It analyses new EU-wide crisis-response tools and ad hoc bilateral arrangements with third countries against existing legal commitments. Recent developments are only the beginning of a much larger re-evaluation of core notions of the ‘trade-energy security’ nexus. To decarbonize, the EU must move towards a ‘security-centred’ energy transition, premised on ‘security first, compliance second’. This requires reassessing the notion of ‘protectionism’ in geopolitically sensitive areas and the current division of energy competences between the EU and its Member States.
{"title":"Towards a ‘security-centred’ energy transition: balancing the European Union’s ambitions and geopolitical realities","authors":"Anna-Alexandra Marhold","doi":"10.1093/jiel/jgad043","DOIUrl":"https://doi.org/10.1093/jiel/jgad043","url":null,"abstract":"The European Union (EU) faces a pressing, multi-level energy crisis propelled by the perfect storm of Russia’s war in Ukraine and rapidly progressing climate change. As a result, the EU is scrambling to ensure it has sufficient energy supplies for the foreseeable future while reinventing its energy strategy in the long term. Since the EU is at a critical juncture for squaring EU energy security with European and international legal commitments, this article surveys this radical shift and its consequences. It analyses new EU-wide crisis-response tools and ad hoc bilateral arrangements with third countries against existing legal commitments. Recent developments are only the beginning of a much larger re-evaluation of core notions of the ‘trade-energy security’ nexus. To decarbonize, the EU must move towards a ‘security-centred’ energy transition, premised on ‘security first, compliance second’. This requires reassessing the notion of ‘protectionism’ in geopolitically sensitive areas and the current division of energy competences between the EU and its Member States.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2023-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138821768","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Investors’ International Law","authors":"D. Dagbanja","doi":"10.1093/jiel/jgad044","DOIUrl":"https://doi.org/10.1093/jiel/jgad044","url":null,"abstract":"","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2023-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139176110","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recent empirical studies have confirmed that arbitrator selection affects outcomes in investor–state arbitrations. This article builds on the existing literature, relying on 48 semistructured interviews with investor-state arbitration practitioners. It makes three novel claims: (A) sophisticated counsel nowadays will take factors beyond a candidate’s appointment record into account when selecting an arbitrator. In this, a candidate’s likely ability to influence their peers’ thinking is particularly important. (B) States struggle to keep up with investors in the sophisticated process of arbitrator selection. They are frequently unable to engage counsel and select suitable arbitrators within the mandated timelines for arbitrator selection, and (C), as a consequence of the former two insights, states frequently fall into four different traps when selecting arbitrators. They appoint as their arbitrators famous jurists without significant investor-state arbitration experience, famous proinvestor arbitrators, and famous arbitrators that have publicly assumed entrenched positions and defer appointments to appointing authorities. This hinders states’ ability to effectively further their case during arbitrator selection, thus disadvantaging them in investor–state arbitrations.
{"title":"Pro-Claimant bias in arbitrator selection","authors":"Tobias Traxler","doi":"10.1093/jiel/jgad039","DOIUrl":"https://doi.org/10.1093/jiel/jgad039","url":null,"abstract":"Recent empirical studies have confirmed that arbitrator selection affects outcomes in investor–state arbitrations. This article builds on the existing literature, relying on 48 semistructured interviews with investor-state arbitration practitioners. It makes three novel claims: (A) sophisticated counsel nowadays will take factors beyond a candidate’s appointment record into account when selecting an arbitrator. In this, a candidate’s likely ability to influence their peers’ thinking is particularly important. (B) States struggle to keep up with investors in the sophisticated process of arbitrator selection. They are frequently unable to engage counsel and select suitable arbitrators within the mandated timelines for arbitrator selection, and (C), as a consequence of the former two insights, states frequently fall into four different traps when selecting arbitrators. They appoint as their arbitrators famous jurists without significant investor-state arbitration experience, famous proinvestor arbitrators, and famous arbitrators that have publicly assumed entrenched positions and defer appointments to appointing authorities. This hinders states’ ability to effectively further their case during arbitrator selection, thus disadvantaging them in investor–state arbitrations.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2023-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138686835","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article aims at exploring the universe of energy disciplines included in preferential trade agreements (PTAs) and their evolution through the prisms of energy security and energy sustainability. It offers a comparative perspective by classifying relevant provisions according to their scope and coverage, their level of normativity and enforceability, and their innovative potential for driving a structural reorientation of PTAs from a security-driven approach (ie focused on the use of trade rules to promote energy trade in order to foster availability) to a sustainability-driven approach (ie focused on the use of trade rules to promote environmentally sustainable energy trade in order to facilitate the energy transition). It identifies the main tenets underpinning this ongoing shift and offers some reflections on how and to which extent environmental sustainability can be advanced through PTA disciplines on energy.
{"title":"Energy disciplines in PTAs between security and sustainability concerns: a comparative perspective","authors":"Ilaria Espa","doi":"10.1093/jiel/jgad040","DOIUrl":"https://doi.org/10.1093/jiel/jgad040","url":null,"abstract":"This article aims at exploring the universe of energy disciplines included in preferential trade agreements (PTAs) and their evolution through the prisms of energy security and energy sustainability. It offers a comparative perspective by classifying relevant provisions according to their scope and coverage, their level of normativity and enforceability, and their innovative potential for driving a structural reorientation of PTAs from a security-driven approach (ie focused on the use of trade rules to promote energy trade in order to foster availability) to a sustainability-driven approach (ie focused on the use of trade rules to promote environmentally sustainable energy trade in order to facilitate the energy transition). It identifies the main tenets underpinning this ongoing shift and offers some reflections on how and to which extent environmental sustainability can be advanced through PTA disciplines on energy.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2023-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138686908","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Russia’s invasion of Ukraine triggered energy and food crises, driven by demand for natural gas as fuel and fertilizer feedstock. By adopting a recent framework for analysing the diverse ways in which international law regulates energy transactions, I extend the category of end-use energy products to include food for human consumption, given the economic importance of dietary energy and the entangled agendas of energy and food security. To highlight the intermediate roles played by international law in securing resources for conversion into dietary energy, I show how rules allocating entitlements over fossil fuels were inherited from an earlier generation of international disputes over fertilizer resources, including the taxation of nitrate exports, alien entitlements to guano discoveries, and the well-known confiscation of a factory at Chorzów. Many of these disputes between States and commercial actors prefigured the reliance of the modern energy industry on investment arbitration and retain currency in case law. Yet, the fertilizer trade also informed the development of offshore resource entitlements, the local regulation of global externalities, and the belated recognition of the rights of peoples over natural resources. Despite this normative evolution, dispute settlement in the energy sector is still driven by States and commercial actors, although the underlying transactions may have profound implications for food security. By reframing food as energy and integrating fertilizer disputes into a long history of international energy law, the anticipated transition from fossil fuels towards green hydrogen as a dual-use fuel and fertilizer feedstock may generate familiar sites of distributive conflict over resources for the production of dietary energy, calling for closer attention to whether food security may be enhanced by the entitlements of collective subjects (food sovereignty), individuals (right to food), corporations (investment protection), and States (economic regulation).
{"title":"From guano to green hydrogen: food security and fertilizer disputes in international energy law","authors":"Oliver Hailes","doi":"10.1093/jiel/jgad037","DOIUrl":"https://doi.org/10.1093/jiel/jgad037","url":null,"abstract":"Russia’s invasion of Ukraine triggered energy and food crises, driven by demand for natural gas as fuel and fertilizer feedstock. By adopting a recent framework for analysing the diverse ways in which international law regulates energy transactions, I extend the category of end-use energy products to include food for human consumption, given the economic importance of dietary energy and the entangled agendas of energy and food security. To highlight the intermediate roles played by international law in securing resources for conversion into dietary energy, I show how rules allocating entitlements over fossil fuels were inherited from an earlier generation of international disputes over fertilizer resources, including the taxation of nitrate exports, alien entitlements to guano discoveries, and the well-known confiscation of a factory at Chorzów. Many of these disputes between States and commercial actors prefigured the reliance of the modern energy industry on investment arbitration and retain currency in case law. Yet, the fertilizer trade also informed the development of offshore resource entitlements, the local regulation of global externalities, and the belated recognition of the rights of peoples over natural resources. Despite this normative evolution, dispute settlement in the energy sector is still driven by States and commercial actors, although the underlying transactions may have profound implications for food security. By reframing food as energy and integrating fertilizer disputes into a long history of international energy law, the anticipated transition from fossil fuels towards green hydrogen as a dual-use fuel and fertilizer feedstock may generate familiar sites of distributive conflict over resources for the production of dietary energy, calling for closer attention to whether food security may be enhanced by the entitlements of collective subjects (food sovereignty), individuals (right to food), corporations (investment protection), and States (economic regulation).","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2023-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138686962","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The reform process for ISDS at UNCITRAL is reaching its climax. Within the next few years, a treaty for ‘ISDS 2.0’ should emerge from this process. A key feature of ISDS 2.0 will be a new international court for resolving investor–state disputes. This court should include an appellate tribunal. A core function of this appellate tribunal will be to produce consistent case law, noting a common complaint about ‘ISDS 1.0’ is that it has produced inconsistent case law. There is good reason to believe that the appellate tribunal of ISDS 2.0 can deliver consistent case law, but the promoters behind ISDS 2.0 need to be careful what they wish for. The WTO dispute settlement system produced consistent case law, yet that achievement turned out to be a reason for its subsequent breakdown. Consistent case law apparently sounds good in theory, but it is not welcome in practice. Is there a way out of this conundrum? This article proposes that a formal doctrine of precedent is the solution. This proposal might initially provoke some surprise—a softer system of precedent is apparently the best compromise. But a doctrine of precedent can be crafted to limit adjudicative law-making power, while emphasizing states’ control over their investment–treaty obligations. This article puts forward the broad outline of this conception of a doctrine of precedent, explains why it gives effect to states’ interests, and examines the methods by which a doctrine of precedent could be adopted.
{"title":"ISDS 2.0: time for a doctrine of precedent?","authors":"Martin Jarrett","doi":"10.1093/jiel/jgad033","DOIUrl":"https://doi.org/10.1093/jiel/jgad033","url":null,"abstract":"The reform process for ISDS at UNCITRAL is reaching its climax. Within the next few years, a treaty for ‘ISDS 2.0’ should emerge from this process. A key feature of ISDS 2.0 will be a new international court for resolving investor–state disputes. This court should include an appellate tribunal. A core function of this appellate tribunal will be to produce consistent case law, noting a common complaint about ‘ISDS 1.0’ is that it has produced inconsistent case law. There is good reason to believe that the appellate tribunal of ISDS 2.0 can deliver consistent case law, but the promoters behind ISDS 2.0 need to be careful what they wish for. The WTO dispute settlement system produced consistent case law, yet that achievement turned out to be a reason for its subsequent breakdown. Consistent case law apparently sounds good in theory, but it is not welcome in practice. Is there a way out of this conundrum? This article proposes that a formal doctrine of precedent is the solution. This proposal might initially provoke some surprise—a softer system of precedent is apparently the best compromise. But a doctrine of precedent can be crafted to limit adjudicative law-making power, while emphasizing states’ control over their investment–treaty obligations. This article puts forward the broad outline of this conception of a doctrine of precedent, explains why it gives effect to states’ interests, and examines the methods by which a doctrine of precedent could be adopted.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2023-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138581426","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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