The Guide to Energy Arbitrations

Those in the international arbitration and energy spaces have had the benefit of topical education in energy arbitration law since 2014 through the Global Arbitration Review’s The Guide to Energy Arbitrations[1]. General Editor William Rowley’s preface positions the latest offering, the Fourth Edition, as one published in the midst of energy and resource sector arbitrations being popular, but also in a world struck by the recent oil crash, the COVID-19 pandemic and Russian sanctions.

One could reasonably wonder about the need for the prolific generation of editions of The Guide to Energy Arbitrations — one less than every two years. The answer is implicit in recent developments: authoritative decisions from international and national courts alike and the passage of new international instruments. Rowley, Doak Bishop and Gordon Kaiser, having assembled the work, are clearly compelled to keep it relevant as the international landscape changes. An international cadre of contributing authors assists them in that goal.

The introduction to the work is one that rightfully spans editions. It provides an overview of the traditional energy sector and energy-related investment disputes. Co-editor Bishop identifies resources, markets, contracts and treaties elaborated on in other parts of the book. For those transitioning their skills into the area, the introduction is the right place to start. After this introduction, the work is decidedly more specialized and focused on specific topics rather than the general intersection of advocacy and energy.

The first section of the book focuses on “Investor-State Disputes in the Energy Sector.” Owners of previous editions will find the foundational chapters in the first section topically updated. The chapter on the Energy Charter Treaty was already one of the longer pieces within the work, authored by Cyrus Benson et al. The Fourth Edition includes important additions about the use of the influential March 2018 decision of the Court of Justice of the European Union in Slovak Republic v Achmea BV[2] by EU Member States to object to the Energy Charter Treaty. Pages of analysis concerning related events (all taking place after publication of the Third Edition) review the impact of the decision.

The chapter on “Investment Disputes Involving the Renewable Energy Industry under the Energy Charter Treaty” has also been enhanced and lengthened from previous editions, with Igor Timofeyev et al now offering analysis of decisions from as recently as last year as part of the offering.

The second section of the book, covering “Commercial Disputes in the Energy Sector,” includes a mixture of updated authorship and new topics. Chapters on “Construction Arbitrations Involving Energy Facilities” and “Offshore Vessel Construction Disputes” are freshly revised. New focuses include an enhanced and longer chapter on “Disputes Involving Regulated Activities,” authored by Kaiser, which is centered on the availability of arbitration when regulators are involved. This chapter includes analysis and reference to recent decisions across North America, including considering the impact of a landmark domestic decision of the Supreme Court of Canada in 2019 on regulatory energy decisions[3].

A new chapter in the commercial disputes section, entitled “NAFTA Energy Arbitrations,” speaks as much to the transition to the United States-Mexico-Canada Agreement as it does to the still-relevant (transitional) private action provisions under NAFTA. This section, also authored by Kaiser, postulates that new common law actions are promising tools to fill space formerly occupied by section 11 of NAFTA. It also addresses where investors in oil, gas and power generation qualify under the new Agreement.

Readers should not be concerned about an excessively North American focus. As noted above, there are material amendments to the work concerning the EU’s Energy Charter Treaty. Furthermore, perhaps the most significant additions to the work focus on international liquefied natural gas (LNG) issues that arise around the world. The introduction to the chapter on “Gas Supply and LNG Arbitrations” demonstrates why LNG is so topical. Hagit Elul et al write:

The natural gas and liquefied natural gas markets are in a state of flux. Even prior to the covid-19 pandemic, the evolution of the natural gas markets was sufficiently rapid as to disrupt existing long-term supply contracts and result in waves of gas price review arbitration predominantly in Europe. Since these initial arbitrations, attention has also turned to Asia, where the LNG market accounts for 68 per cent of global imports. Asia was spared Europe’s arbitration wave, thanks in large part to the systemic differences between the Asian and European gas markets but that may be about to change.[4]

The next section in the Fourth Edition is on “Contractual Terms.” This section, as if beckoned by the “Gas Supply and LNG Arbitrations” chapter that precedes it, contains three chapters focused on natural gas. The first chapter is a modestly updated, but foundational piece by authors Stephen Amway and George von Mehren on “The Evolution of Natural Gas Price Review Arbitrations.”

Two new chapters focus on gas price review disputes and provide insights from two leading European-based practitioners. These new chapters come from experienced counsel, one contributing to The Guide to Energy Arbitrations for the first time, and the other providing a lengthier contribution than in the past. The first new chapter, from Devika Khanna, involves a focus on the process of gas price reviews, arising from the author’s experiences as the LNG markets have developed.

The second new chapter seeks to identify “inflection points in the analyses of price review tribunals that drive the outcome of these extremely important cases.”[5] Counsel to Edison SpA, Marco Lorefice, provides well-informed views given his role in developing the legal frameworks for both the Egyptian and Adriatic LNG Projects.

Collectively, the chapters on “Contractual Terms” and “Gas Supply and LNG Arbitrations” provide expertise about price review arbitrations and insights for possible success, but also reflect an increased emphasis on the Asian LNG market where “new price reviews sit at the crest of a new wave of arbitrations in Asia.”[6]

Each edition of The Guide to Energy Arbitrations has included discussion of procedural issues in energy arbitrations. The Third Edition dealt with consolidation, compensation and expert evidence. This Fourth Edition focuses solely on an evolution of the first of those topics, as Pappas et al provide an expanded take on how to manage parallel proceedings when consolidation is not possible in “When Consolidation Fails: The Challenges of Parallel Arbitral Proceedings”. The chapter provides useful measures to transactional lawyers to mitigate the risk of parallel arbitration and court proceedings and recommendations for arbitration practitioners once disputes have arisen.

Today’s legal marketplace is defined more than ever by combining industry expertise with legal practice experience. To that end, The Guide to Energy Arbitrations provides information uniquely focused on the intersection of energy law and advocacy. The editors note that among the cases heard by the London Court of International Arbitration in 2019, the energy and resources sector accounted for the greatest number of parties. The Guide to Energy Arbitrations is a useful tool for those in this popular space, keeping up with a shifting international economic and legal landscape.

* Adam Chisholm is a partner and litigation lawyer at Mcmillan known for his expertise in capital markets and securities, intellectual property (IP) and administrative and public law.

  1. J William Rowley, Doak Bishop & Gordon E Kaiser, The Guide to Energy Arbitration, 4th ed (London, UK: Law Business Research Ltd, 2020), online: Global Arbitration Review <>.
  2. C-284/16, online: <>.
  3. See Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.
  4. Rowley, Bishop & Kaiser, supra note 1 at 155.
  5. Ibid at 193.
  6. Ibid at 183.

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