Investment and investor protection under the Energy Charter Treaty

Produced in partnership with Cyrus Benson of Gibson Dunn , Charline O. Yim of Gibson Dunn , Victoria R. Orlowski of Gibson Dunn and Ankita Ritwik of Gibson Dunn
Practice notes

Investment and investor protection under the Energy Charter Treaty

Produced in partnership with Cyrus Benson of Gibson Dunn , Charline O. Yim of Gibson Dunn , Victoria R. Orlowski of Gibson Dunn and Ankita Ritwik of Gibson Dunn

Practice notes
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This Practice Note deals with the substantive standards of protection under the Energy Charter Treaty (ECT). It does not cover the notions of qualifying investor and qualifying investment, denial of benefits or the dispute resolution mechanism under the ECT (including arbitration). For more information on these aspects, see Practice Note: Investment treaty arbitration under the Energy Charter Treaty. The terms investor, investment and Contracting Party as used herein are defined in that Practice Note.

Part III of the ECT includes a catalogue of provisions that establish a high standard of protection of foreign investments that occur within the territories of host states that are Contracting Parties to the ECT. The key provisions in Part III of the ECT are Articles 10 and 13.

Fair and equitable treatment (FET) and the ECT

Article 10(1) of the ECT obliges Contracting Parties to accord fair and equitable treatment (FET) to protected investments. It

Cyrus Benson
Cyrus Benson

Cy Benson is a partner in the London office of Gibson, Dunn & Crutcher, and serves as Co-Chair of the firm's International Arbitration Practice Group. Mr. Benson represents clients in commercial and investment treaty arbitrations under all major institutional rules arising from a wide variety of industry sectors, with particular emphasis in oil & gas, mining/minerals and infrastructure. He is experienced in complex litigation and has significant trial and appellate experience in U.S. federal and state courts. His recent representations include advising a major oil company in a $1.5 billion ICC arbitration arising from divestment of an Eastern European refinery, pipeline and export company; a US energy company in a high value ICSID arbitration arising from the termination of a geothermal concession by an African State; and a major oil company in multi-billion dollar claims for expropriation under the Energy Charter Treaty. Mr. Benson is consistently ranked as a leading lawyer for International Arbitration by Chambers and Partners UK Guides, Chambers and Partners Global Guides, and Best Lawyers International. In addition, he is recognized for International Arbitration by The Legal 500 UK; 'highly recommended' for Dispute Resolution: Arbitration in Practical Law Company's Which Lawyer?, and listed as an expert in Arbitration in Who's Who Legal 2015, and UK Legal Experts 2012. Mr. Benson has also been recommended for Dispute Resolution: International Arbitration in Chambers Europe. He was a member of the IBA Task Force on Party Representation in International Arbitration and also sits as an arbitrator. Year Qualified: New York, USA - 1992 United Kingdom - 2008

Charline O. Yim
Charline O. Yim chambers

Charline Yim is an associate in the New York office of Gibson, Dunn & Crutcher. She is a member of the Litigation and International Arbitration Practice Groups. Ms. Yim earned her Juris Doctor in 2011 from Harvard Law School, where she was the Co-Editor-in-Chief of the Harvard International Law Journal. She graduated summa cum laude in 2008 from the University of California, Los Angeles, where she studied Economics, English, and Political Science, and was elected to Phi Beta Kappa. Ms. Yim is admitted to practice in the State New York, and before the United States District Court for the Southern District of New York and the United States District Court for the Eastern District of New York.

Victoria R. Orlowski
Victoria R. Orlowski

Victoria R. Orlowski, an associate in the New York of Gibson ,Dunn & Crutcher, acts as counsel in both commercial and investment-treaty based international arbitrations, as well as in litigation matters. In addition to representing clients, Ms. Orlowski is active in the international arbitration community. She is acting Vice President of the Standing Committee of the ICC International Centre for ADR and Co-Chaired the ICC Commission's task force on the revision of the Rules of ICC as Appointing Authority in UNCITRAL Or Other Ad Hoc Arbitration Proceedings, which came into force in 2017. Ms. Orlowski joined Gibson Dunn from the Secretariat of the International Court of Arbitration of the International Chamber of Commerce. As counsel of the North American team and then as Managing Counsel, she supervised the ICC Court's case management teams, performed second level review of draft arbitral awards, worked closely with the Secretary General and Deputy Secretary General of the ICC Court and ICC General Counsel to form and maintain practices and helped establish the ICC's New York based case management team. Prior to joining the ICC, Ms. Orlowski was an associate at White & Case in New York.

Ankita Ritwik
Ankita Ritwik

Ankita Ritwik is an associate in the Washington, D.C. office of Gibson, Dunn & Crutcher. She is a member of the Litigation and International Arbitration Practice Groups. Ms. Ritwik's recent experience includes representing multinational companies with investments in Latin America, Asia and Africa, in the energy, manufacturing and mining industries. Ms. Ritwik earned her Juris Doctor cum laude in 2013 from Harvard Law School, where she was the Notes Editor for the Harvard International Law Journal. She graduated with honors from Yale University in 2007, where she double-majored in Economics and Molecular Biophysics & Biochemistry. Before attending law school, Ms. Ritwik worked as a business analyst for McKinsey & Co. Ms. Ritwik is fluent in Hindi, and has a working knowledge of Spanish and French. Ms. Ritwik is admitted to practice in the District of Colombia and the State of New York. Year Qualified: District of Columbia, USA- 2015 New York, USA ' 2014

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Jurisdiction(s):
United Kingdom
Key definition:
Investment definition
What does Investment mean?

An investment will typically mean any type of property or interest held within the territory of the host state. This will often extend far beyond 'obvious' property, such as real estate or shares in a local company, to (depending upon the circumstances) other interests such as rights under a contract, intellectual property rights and private loans. As with the concept of 'investor,' in the modern commercial world what does and does not qualify as investment can be a complex question. The definition of 'investment' will vary between BITs.

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