At this critical juncture in the energy transition dominated by debates over armed conflicts, advisory opinions on climate changes, and investor-State arbitration, it is critical to also consider developments in the peaceful settlement of inter-State energy disputes. One central dispute between the Republic of Iraq and the Republic of Turkey arose out of the Crude Oil Pipeline Agreement for the supply and purchase of crude oil. Iraq filed a request for arbitration in May 2014 under the International Chamber of Commerce Rules of Arbitration. The Tribunal awarded Iraq nearly United States Dollars (USD) 1.5 billion. The Tribunal’s unanimous final award in 2023 discusses fascinating aspects of international energy transactions, including the choice of domestic law in a treaty dispute, defences under the law of treaties, a putative norm of jus cogens to prevent genocide, and possible remedies in an inter-State pipeline arbitration.
{"title":"Peaceful settlement of inter-state energy disputes: applicable law, defence arguments, and remedies in the ICC arbitration between Iraq and Turkey","authors":"B. Demirkol","doi":"10.1093/jiel/jgad038","DOIUrl":"https://doi.org/10.1093/jiel/jgad038","url":null,"abstract":"\u0000 At this critical juncture in the energy transition dominated by debates over armed conflicts, advisory opinions on climate changes, and investor-State arbitration, it is critical to also consider developments in the peaceful settlement of inter-State energy disputes. One central dispute between the Republic of Iraq and the Republic of Turkey arose out of the Crude Oil Pipeline Agreement for the supply and purchase of crude oil. Iraq filed a request for arbitration in May 2014 under the International Chamber of Commerce Rules of Arbitration. The Tribunal awarded Iraq nearly United States Dollars (USD) 1.5 billion. The Tribunal’s unanimous final award in 2023 discusses fascinating aspects of international energy transactions, including the choice of domestic law in a treaty dispute, defences under the law of treaties, a putative norm of jus cogens to prevent genocide, and possible remedies in an inter-State pipeline arbitration.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138616741","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":"The dilemma of sovereign debt enforcement","authors":"L. Buchheit","doi":"10.1093/jiel/jgad034","DOIUrl":"https://doi.org/10.1093/jiel/jgad034","url":null,"abstract":"","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2023-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139212266","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}
Fossil fuel combustion is undeniably the largest source of greenhouse gas emissions worldwide. In order to meet the Paris Agreement target of keeping global warming below 2°C, globally, a third of oil and half of gas reserves should remain unused from 2010 to 2050. In 2021, the International Energy Agency estimated that in the net-zero emissions scenario there is no need for fossil fuel exploration, new oil and natural gas fields beyond those already been approved for development, or new coal mines or mine extensions. While greenhouse gas emissions from the actual exploration and production activities (upstream emissions) are increasingly regulated, the emissions from the final combustion of the produces oil and gas are not taken into account when new projects are approved. This paper argues that there is a significant lack of integration between climate and energy regulation which, if not corrected, may result in challenges to achieve the global climate targets. It analyses the mechanisms for better inclusion of climate considerations at the oil and gas development approval stage. It starts with a review of international initiatives examining the lack of engagement with the climate regime and fossil fuel production. It further analyses the oil and gas development approval regime in the UK with a view to highlighting the lack of integration of climate concerns in the licensing and environmental assessment processes.
{"title":"Climate change and oil and gas production regulation: an impossible reconciliation?","authors":"Daria Shapovalova","doi":"10.1093/jiel/jgad032","DOIUrl":"https://doi.org/10.1093/jiel/jgad032","url":null,"abstract":"Fossil fuel combustion is undeniably the largest source of greenhouse gas emissions worldwide. In order to meet the Paris Agreement target of keeping global warming below 2°C, globally, a third of oil and half of gas reserves should remain unused from 2010 to 2050. In 2021, the International Energy Agency estimated that in the net-zero emissions scenario there is no need for fossil fuel exploration, new oil and natural gas fields beyond those already been approved for development, or new coal mines or mine extensions. While greenhouse gas emissions from the actual exploration and production activities (upstream emissions) are increasingly regulated, the emissions from the final combustion of the produces oil and gas are not taken into account when new projects are approved. This paper argues that there is a significant lack of integration between climate and energy regulation which, if not corrected, may result in challenges to achieve the global climate targets. It analyses the mechanisms for better inclusion of climate considerations at the oil and gas development approval stage. It starts with a review of international initiatives examining the lack of engagement with the climate regime and fossil fuel production. It further analyses the oil and gas development approval regime in the UK with a view to highlighting the lack of integration of climate concerns in the licensing and environmental assessment processes.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2023-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138531678","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}
ABSTRACT In response to the 2022 energy crisis, caused by the disruption of Russian gas supplies to Europe, the European Union (EU) emphasized the importance of accelerating the deployment of renewable energy to ensure supply security and lower energy prices. Paradoxically, renewable energy investments were also one of the main targets of the EU efforts to contain the hardship of the crisis. Based on the reasoning that investors in wind and solar energy received profits that by far exceeded pre-crisis levels, the EU capped their ‘surplus revenues’ and initially proposed to decouple electricity from gas prices. These initiatives were justified based on considerations of distributive energy justice. Yet, by interfering with revenues and the electricity market structure, the EU signalled to renewable energy investors the risk of regulatory intervention with the market basis governing their investments. Building on the arbitral practice on renewable energy and electricity regulation, this article examines the international protection of market-based renewable energy investments and critically reflects on how investment protection affects states’ right to ensure energy justice in times of crisis.
{"title":"Energy justice in times of crisis: protection of consumers and market-based renewable energy investments","authors":"Anatole Boute","doi":"10.1093/jiel/jgad030","DOIUrl":"https://doi.org/10.1093/jiel/jgad030","url":null,"abstract":"ABSTRACT In response to the 2022 energy crisis, caused by the disruption of Russian gas supplies to Europe, the European Union (EU) emphasized the importance of accelerating the deployment of renewable energy to ensure supply security and lower energy prices. Paradoxically, renewable energy investments were also one of the main targets of the EU efforts to contain the hardship of the crisis. Based on the reasoning that investors in wind and solar energy received profits that by far exceeded pre-crisis levels, the EU capped their ‘surplus revenues’ and initially proposed to decouple electricity from gas prices. These initiatives were justified based on considerations of distributive energy justice. Yet, by interfering with revenues and the electricity market structure, the EU signalled to renewable energy investors the risk of regulatory intervention with the market basis governing their investments. Building on the arbitral practice on renewable energy and electricity regulation, this article examines the international protection of market-based renewable energy investments and critically reflects on how investment protection affects states’ right to ensure energy justice in times of crisis.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135186391","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}
ABSTRACT The question of human rights and energy has been traditionally framed as an analysis of limitations on energy transactions arising from substantive and procedural human rights. Whereas the negative externality framing of human rights sets safeguards against the adverse effects of energy transactions and thereby restrains how such transactions are conducted, it overlooks a more fundamental dimension, the conferral of entitlements. Indeed, human rights define entitlements over energy resources, setting competing claims that limit not only how energy transactions are conducted but also the very power to conduct them in the first place. The entitlement dimension of human rights also unveils a wider question, namely the competing claims of a variety of collective subjects against the entitlement of the territorial or coastal States. In other words, such reframing opposes two logics of international law, each based on a different conception of the source from which entitlements flow. This article investigates the externality-avoidance and entitlement function of human rights in the context of international energy transactions. It reviews the most relevant judicial and quasi-judicial practice at the international level to illustrate the implications of framing the function of human rights from one or the other perspective.
{"title":"Beyond externalities: human rights as a foundation of entitlements over energy resources","authors":"Ginevra Le Moli","doi":"10.1093/jiel/jgad031","DOIUrl":"https://doi.org/10.1093/jiel/jgad031","url":null,"abstract":"ABSTRACT The question of human rights and energy has been traditionally framed as an analysis of limitations on energy transactions arising from substantive and procedural human rights. Whereas the negative externality framing of human rights sets safeguards against the adverse effects of energy transactions and thereby restrains how such transactions are conducted, it overlooks a more fundamental dimension, the conferral of entitlements. Indeed, human rights define entitlements over energy resources, setting competing claims that limit not only how energy transactions are conducted but also the very power to conduct them in the first place. The entitlement dimension of human rights also unveils a wider question, namely the competing claims of a variety of collective subjects against the entitlement of the territorial or coastal States. In other words, such reframing opposes two logics of international law, each based on a different conception of the source from which entitlements flow. This article investigates the externality-avoidance and entitlement function of human rights in the context of international energy transactions. It reviews the most relevant judicial and quasi-judicial practice at the international level to illustrate the implications of framing the function of human rights from one or the other perspective.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135186504","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}
ABSTRACT This article uses computational methods to analyse the development of the international investment law regime, seeking to understand how, when, and by whom change in treaty language occurs. The study uses a novel computational method to explore the influence of different states on the language of international investment treaties and the spread of language patterns. The analysis reveals a hegemony of Western European, rather than North American influence, and further highlights a clear early mover advantage for obtaining language spread. The article discusses the implications of these findings for the investment treaty system, particularly the limited impact of hard negotiating power compared to early entrance and convincing legal language.
{"title":"Treaty influencers: a computational analysis of the development of international investment law","authors":"Runar Hilleren Lie","doi":"10.1093/jiel/jgad029","DOIUrl":"https://doi.org/10.1093/jiel/jgad029","url":null,"abstract":"ABSTRACT This article uses computational methods to analyse the development of the international investment law regime, seeking to understand how, when, and by whom change in treaty language occurs. The study uses a novel computational method to explore the influence of different states on the language of international investment treaties and the spread of language patterns. The analysis reveals a hegemony of Western European, rather than North American influence, and further highlights a clear early mover advantage for obtaining language spread. The article discusses the implications of these findings for the investment treaty system, particularly the limited impact of hard negotiating power compared to early entrance and convincing legal language.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135298953","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}
ABSTRACT Private bodies involved in global regulatory governance shape and monitor economic behaviour. Their regulatory power has greatly increased over the last several decades. Thanks to an impressive apparatus of standard-setting, they have transformed economic activity. The dominance of private bodies in standard-setting has continued despite crises to which they themselves have contributed. Existing literature suggests that the State ‘orchestrates’ private regulatory activity, thereby retaining a high level of control. Yet, this article shows that the opposite has occurred: crises, broadly defined as disruptive events, make private bodies more resilient or generate new transnational ones. The lack of State control has ushered in a new era of private authority. Private bodies use crises as opportunities to reorganize and become more assertive in norm-creation, overriding and substituting State powers. Free from organizational hierarchies, formal accountability structures, scrutiny, pressure, and obligations, private bodies expand their regulatory domain, enhance their collective memory and identity, and grow stronger through crises. Future empirical work on the interaction between public regulatory and supervisory authorities and private rule-makers can make a difference in ensuring that private rule-making serves the public interest.
{"title":"Transnational economic activism and private regulatory power","authors":"Panagiotis Delimatsis","doi":"10.1093/jiel/jgad028","DOIUrl":"https://doi.org/10.1093/jiel/jgad028","url":null,"abstract":"ABSTRACT Private bodies involved in global regulatory governance shape and monitor economic behaviour. Their regulatory power has greatly increased over the last several decades. Thanks to an impressive apparatus of standard-setting, they have transformed economic activity. The dominance of private bodies in standard-setting has continued despite crises to which they themselves have contributed. Existing literature suggests that the State ‘orchestrates’ private regulatory activity, thereby retaining a high level of control. Yet, this article shows that the opposite has occurred: crises, broadly defined as disruptive events, make private bodies more resilient or generate new transnational ones. The lack of State control has ushered in a new era of private authority. Private bodies use crises as opportunities to reorganize and become more assertive in norm-creation, overriding and substituting State powers. Free from organizational hierarchies, formal accountability structures, scrutiny, pressure, and obligations, private bodies expand their regulatory domain, enhance their collective memory and identity, and grow stronger through crises. Future empirical work on the interaction between public regulatory and supervisory authorities and private rule-makers can make a difference in ensuring that private rule-making serves the public interest.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135200266","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}
ABSTRACT Energy governance at the international level is fraught with difficulties due to the ‘competition among purposes’ between different bodies of international law. In this paper, we extend this thesis to argue that the same tension may be found in domestic energy governance. Drawing from China’s experience in the governance of climate change and energy transition, we analyse how the misalignment of incentives between different actors and the incomplete market reform led to a drastic shift in policy in 2021. We also compare the different approaches in China’s energy governance and trade governance and draw some general lessons on how developing countries might overcome such governance problems.
{"title":"Competition among purposes: The Chinese Experience in the Governance of Climate Change and Energy Transition","authors":"Henry Gao, Weihuan Zhou","doi":"10.1093/jiel/jgad027","DOIUrl":"https://doi.org/10.1093/jiel/jgad027","url":null,"abstract":"ABSTRACT Energy governance at the international level is fraught with difficulties due to the ‘competition among purposes’ between different bodies of international law. In this paper, we extend this thesis to argue that the same tension may be found in domestic energy governance. Drawing from China’s experience in the governance of climate change and energy transition, we analyse how the misalignment of incentives between different actors and the incomplete market reform led to a drastic shift in policy in 2021. We also compare the different approaches in China’s energy governance and trade governance and draw some general lessons on how developing countries might overcome such governance problems.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136248839","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 to show that the mainstream discourse of the international law of foreign investment protection has adjusted itself to changing historical circumstances in a way that brings to light its strategic and ideological character. It argues, in particular, that the justifications offered in defence of foreign investment protection under international law appear to have been pretextual rather than principled, having been offered to provide reasons capable of flying at a particular point in time in light of the attending circumstances rather than to serve as an analytically sound, empirically grounded, and diachronically consistent framework.
{"title":"‘These are my principles. If you don’t like them I have others.’ On justifications of foreign investment protection under international law","authors":"Fuad Zarbiyev","doi":"10.1093/jiel/jgad025","DOIUrl":"https://doi.org/10.1093/jiel/jgad025","url":null,"abstract":"\u0000 This article aims to show that the mainstream discourse of the international law of foreign investment protection has adjusted itself to changing historical circumstances in a way that brings to light its strategic and ideological character. It argues, in particular, that the justifications offered in defence of foreign investment protection under international law appear to have been pretextual rather than principled, having been offered to provide reasons capable of flying at a particular point in time in light of the attending circumstances rather than to serve as an analytically sound, empirically grounded, and diachronically consistent framework.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2023-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43015459","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}
Much attention has been placed on how trade agreements integrate and benefit from a non-binding International Labour Organization (ILO) declaration. That declaration lists the fundamental labour principles to which all the ILO’s members, and thus the trade parties, have already consented. However, until now, it has been unclear whether and to what extent that integration, in turn, benefits the ILO’s regime. Comparing standard-setting negotiations at the ILO in 1998 and 2022, this article argues that the hardening of non-binding labour rights in binding trade agreements stagnates and complicates new labour standards. The ILO’s members now demand a saving clause expressly decoupling their new non-binding standard from their binding trade commitments. The implications of those negotiations for the future standard setting are wide-ranging and significant. As states become more aware of the potential binding nature of their non-binding standards, they are decoupling the ILO’s regime from their trade regime and shrinking the reach of the ILO’s fundamental principles in the process. This article draws from labour-adjacent standards integrated into trade agreements to show how states may mitigate that feedback loop.
{"title":"Integrating non-binding labour standards in binding trade agreements: The ILO’s feedback loop","authors":"Desirée LeClercq","doi":"10.1093/jiel/jgad026","DOIUrl":"https://doi.org/10.1093/jiel/jgad026","url":null,"abstract":"\u0000 Much attention has been placed on how trade agreements integrate and benefit from a non-binding International Labour Organization (ILO) declaration. That declaration lists the fundamental labour principles to which all the ILO’s members, and thus the trade parties, have already consented. However, until now, it has been unclear whether and to what extent that integration, in turn, benefits the ILO’s regime. Comparing standard-setting negotiations at the ILO in 1998 and 2022, this article argues that the hardening of non-binding labour rights in binding trade agreements stagnates and complicates new labour standards. The ILO’s members now demand a saving clause expressly decoupling their new non-binding standard from their binding trade commitments. The implications of those negotiations for the future standard setting are wide-ranging and significant. As states become more aware of the potential binding nature of their non-binding standards, they are decoupling the ILO’s regime from their trade regime and shrinking the reach of the ILO’s fundamental principles in the process. This article draws from labour-adjacent standards integrated into trade agreements to show how states may mitigate that feedback loop.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2023-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44261094","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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