THE ROLE OF INVESTMENT ARBITRATION IN CONCEPTULIZATION AND INTREPRETATION OF THE PRINCIPLE OF PUBLIC PARTICIPATION IN OIL DISPUTES

Document Type : ISI

Authors

1 Assistant Professor, Private Law Department, Shahid Beheshti University

2 Ph.D. in Oil and Gas Law, International Trade Law Department, Faculty of Law, Shahid Beheshti University

Abstract

Implementing the principle of public participation in oil disputes requires the participation of individuals or groups of public who are not parties to arbitration. This participation can be realized through the presentation of written submission, access to important arbitration documents and attendance in arbitration hearings. The rules of international arbitration in the recent reforms and bilateral investment treaties in the new generation have taken the course of implementing this principle. This article seeks to analyze implementation of the principle of participation in the framework of arbitration proceedings. In this paper, two petroleum cases has been reviewed; One has been ruled by a arbitration tribunal to enforce the principle of public participation and the other have rejected this principle. The study indicates, firstly, the importance of stipulating the principle of participation in arbitration rules and investment treaties, and secondly demonstrates tribunals’ lack of willingness to implement the rule of article 31(3) of the Vienna Convention. In LonePine v. Canada, despite the investor's disagreement, tribunal accepted the written submission of the two NGOs based on ICSID Article 37 and NAFTA's statement. However, in Chevron v. Ecuador, the public were not allowed to participate. The silence of the Ecuador-US BIT as well as the implicit authority set forth in Article 15 of UNCITRAL (1976) could be regarded as grounds for this rejection.

Keywords

References

الف) فارسی
1. رمضانی قوام‌آبادی، محمدحسین (1389). «بررسی محتوای اصل مشارکت در حقوق بین‌الملل محیط زیست». دوفصلنامۀ پژوهش حقوق و سیاست، دورۀ ۱۲، شمارۀ ۲۹، ص 87 -114.
ب) خارجی
2. Alschner, Wolfgang (2015). The Return of the Home State and the Rise of Embedded, a chapter in The Role of the State in Investor-State Arbitration.
3. Cotula, Lorenzo (2010). investment Contracts and Sustainable Development: How to Make Contracts for Fairer and More Sustainable Natural Resource Investments.
4. Euler, Dimitrij؛ Gehring, Markus؛ Scherer, Maxi (2015). Transparency in International Investmesment Arbitration: Cambridge University Press.
5. Kent, Avidan (2012). The Principle of Public Participation in ICSID Arbitration , a chapter in Sustainable Development Principles in the Decisions of International Courts.edited by Marie-Claire Cordonier Segger, Judge C.G. Weeramantry.
6. Levine, Eugenia (2011). “Amicus Curiae in International Investment Arbitration: The Implications of an Increase in Third-Party Participation”. Berkeley Journal of International Law, Vol. 29 | Issue 1.
7. Mauerhofer, Volker (2016). Public participation in environmental matters: Compendium, challenges and chances globally, Land Use Policy.
8. Newcomb, Andrew (2006). “Sustainable Development and Investment Treaty Law”. The Journal of World investment and Trade.
9. Schrijver , Nico J. (2005). International Law and Sustainable Development: Principles and Practice Hardback Developments in International Law: Martinus Publication, Edited by Friedl Weiss.
10. Stephen, Alistair؛ Clarkep, Rieu (2004). A fresh approach to international law in the field of sustainable development: University of Dundee.
11. Tienhaara, Kyla (2007) . “Third Party Participation in Investment- Environment Disputes: Recent Developments”. RECIEL, Vol. 16, No. 2.
Journal Of Researches Energy Law Studies
Volume 5, Issue 1
Spring & Summer
April 2019
Pages 77-91

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