Foreword
Mr. Andris Piebalgs - EU Commissioner to Energy
Introduction
Section I : Political Energy Relations Between EU and Russia
Chapter I: EU-Russia Energy Dialogue at the Origin of the European Foreign Energy Policy
1.Introduction
2.Objectives and Functioning of the EU – Russia Energy Dialogue
1.The Permanent Partnership Council (PPC)
3.Progress Achieved Under the Energy Dialogue
4.Main Elements of the Energy Dialogue
E.Early Warning Mechanism
5.Future of the Dialogue
6.Conclusion
Mr. Ferran Tarradellas - Spokesman of the Energy Commissioner
Chapter II: The Politics of EU – Russia Energy Relations
1.Introduction
2.Russian Energy Policy
3.Ukraine
4.EU Energy Policy
5.Conclusion
Dr. Fraser Cameron
Section II: Legal Aspects of EU - Russia Energy Relations
Chapter I: A Common Russia – EU Energy Space (The New EU – Russia Partnership Agreement, Acquis Communautaire, The Energy Charter and the New Russian Initiative)
1.Introduction
2.First Option: Export of the Acquis communautaire (the EU’s Preferred Approach but a “no go” For Russia)
A.“Direct” expansion of the ‘acquis’ area
B.“Indirect” expansion of the ‘acquis’ area
3.Second Option: A New bilateral Treaty
4.Third Option: a New PA Energy Chapter Based on the 1994 ECT
5.The Energy Charter and Consequences of the Recent Russia-Ukraine Gas Dispute (Role of the Energy Charter Secretariat)
6.New Russian Energy Initiative and the Energy Сharter
A.Russia is bound by the ECT
B.Consequences of withdrawal from the ECT
C.Transit: common fallacy
7.Practical Actions for Moving Forward
8.Russia Between Two Margins: to Lead Energy Charter Process “Plus” – or to Withdraw From ECT Provisional Application?
A.Disadvantages resulting from withdrawal
B.Energy Charter process “plus”
C.Road map within Energy Charter “plus” scenario
9.Unfortunate Development - and its Consequences
Dr. Andrei Konoplyanik
Chapter II: EU- Russia Relations in the Energy Field: The Continuing Role of International Law
1.Context
2.Energy and Sovereignty
3.The EU’s House-Keeping Matters
4. Avenues in International Law
B.Treaties and public international law
C. Russia’s provisional application
E.The ‘domestic exception’ clause in Article 45
F.Scope of provisional application: time and relationship to substantive ECT provisions
G.Treaties and Russian law
H.The rule of law in the ECT
5.Conclusion
Mrs. Sophie Nappert - Arbitrator
Chapter III: Arbitrating Disputes Under the Energy Charter Treaty
2.Overview of the Energy Charter Treaty
B.Investment promotion and protection
3.Investment Protection
C.Minimum standard of investment protection – Article 10(1)
1.Fair and equitable treatment
2.Most constant protection and security
D.Most favoured nation treatment
E.Article 13 – Expropriation
F.Article 17 – Non-application of Part III in Certain Circumstances
4.Settlement of Disputes between an Investor and a Contracting Party
C.The investor’s choice of forum for dispute resolution
E.Local companies controlled by foreign investors
5.Provisional Application of the ECT
A.Provisional application of treaty obligations
B.The relationship between international law and municipal law
C.Termination and opting out of provisional of the ECT
A.Brief introduction to the cases
1.Nykomb Synergetics Technology Holding AB v. the Republic of Latvia
2.Petrobart Limited v. the Kyrgyz Republic
3.Plama Consortium Limited v. Republic of Bulgaria (ICSID case no. ARB/03/24)
5.Ioannis Kardassopoulos v. Georgia (ICSID Case No. ARB/05/18) - Decision on jurisdiction B.Jurisdictional issues
(b)Retroactive Application
(b)Applicability of the ECT with regard to Gibraltar
(a)Jurisdiction Ratione Materiae
(b)Provisional application
6.Concluding remarks on jurisdiction
(b)Provisional application
3.Concluding remarks regarding compensation
7.Concluding Remarks
Dr. Kaj Hober - Arbitrator - Mannheimer Swartling
Chapter IV: Enforcement of Foreign Arbitral Awards in Russia: Improving, but Still Uncertain
1.Introduction
2.The Russian Legal System has Generally Demonstrated a “Two Steps Forward, One Step Back” Approach to Enforcement of Foreign Arbitral Awards under the New York Convenition
3.Examining Russia’s Nascent Pro-Enforcement Trend Through the Application of Three Oft-Cited Grounds for Refusal Highlights the Domestic Courts’ Internal Struggle
A.Non-arbitrability of the underlying dispute
B.Lack of sufficient notice
C.Arbitration awards as contrary to Russian public policy
4.Conclusion
Mark Baker, Jonathan Sutcliffe , Kirsten Hetzel Wilson and Kinan H. Romman - Fulbright & Jaworski
Chapter V: The Effect of the EC – Russia Partnership Agreement in Community Law: Lessons Learned From the Soccer World
1.Introduction
A.The EC-Russia Partnership Agreement
B.Partnership Agreements as an instrument of EC external policy
2.The Effect of International Agreements in the Community Legal Order
3.Direct Effect of the EC-Russia Partnership Agreement
4.From Professional Football to Energy Relations
5.Relevance for a New EC-Russia Bilateral Agreement
A.Lessons learned from Simutenkov
B.Implications for an energy chapter in the future agreement
1.Rules modelled on EC law
2.Rules not modelled on EC law
6.Conclusion
Dr. Dirk Buschle - Legal Counsel Energy Community Secretariat
Section III: Changing the Rules for the EU Natural Gas Markets - From State to Market and Plan to
Contract
Chapter I: The New EU Energy Policy and Implications for Former Soviet Union Natural Gas Suppliers
1.Introduction
2.Changes in the Regulation of the EU Internal Market in Natural Gas
3.Natural Gas Pipeline Projects from the Caspian Region
A.Inconsistent rule of law
4.New Energy Strategy - Second Strategic Energy Review
5.Conclusion
Dr. Dmitry Volkov, Dr. Gürcan Gülen and Dr. Michelle Michot Foss - Centre for Energy Economist, Austin University - Texas.
Chapter II: Unbundling as a Defence Mechanism Against Russia: Is the EU Missing the Point?
2.Challenging Unbundling and the Third Country Clause Under the EC Treaty
A.Is the EU competent to require unbundling?
1.Article 95 cannot be used to address potential behaviour
2.Unbundling requirements are inconsistent with the principle of subsidiarity and proportionality
B.Can the EU restrict the free movement of capital and the freedom of establishment?
1.Unbundling and the third country clause violate the free movement of capital and the freedom of establishment
2.These violations cannot be covered by any exceptions
3.Challenging Unbundling and the Third Country Clause Under BITs and the ECT
A.Claiming compensation under a BIT
B.Claiming compensation under the ECT
4.Concluding Remarks – Enforceability and Bilateral Relations
B.EU-Russia bilateral energy relations
Arnoud Willems, Jung-ui Sul and Yohan Benizri - Sidley Austin LLP
Chapter III: The Long-Term Capacity Agreements, Third Party Access and EU-Russia Relations
1.Introduction
2.Access to Import and Transit Pipelines Under EU Law
3.Secondary EC Law and Third Party Access in the Gas Sector
A.The gas market Directive
2.Third party access services
3.Exemptions from TPA – new infrastructure
4.TPA and EC Competition Law
2.The essential facility doctrine
3.Refusal to deal – access to pipelines
(a) There must be a refusal to deal
(b) There are two distinct markets and the requested company has a dominant position in the upstream market
(c) The input is essential and indispensable for competition in the downstream market
(d) Refusal leads to total elimination of competition
(e) In case of IP rights, there is a requirement of “new product”
(f) There is no objective justification for the refusal
5.Relationship Between General Competition Laws And Sector-Specific Energy Regulation
A.The relationship – possible approaches
B.The European Court of Justice
C.Application of the two regimes
6.TPA and EU-Russia Relations – The Right of First Refusal
7.Conclusion
Kim Talus and Michaël Hunt - University College London and scientific collaborator Université catholique de Louvain
Chapter IV: Russian Energy Strategy and Transit Routes in Eastern Europe – A View From Warsaw
1.Introduction
2.Poland’s Energy Policy
A.Poland’s energy security
B.Tensions on the Yamal-Europe gas pipeline
C.Russian Polish transit disputes in Europolgaz
3.Poland’s Perceptions of the Russian Energy Policy
A.Perceptions of the Russian-Ukrainian gas disputes
B.Perceptions of the Russian-German energy cooperation
4.New Energy Alliances in Eastern Europe
C.Developments on the Druzhba Pipeline
D.Odessa-Brody oil pipeline
5.Conclusions
Mr. Alexander Kotlowski - Oxford University
Chapter V: Can Nordstream and Southstream Survive in a Changing European Gas Market?
1.Introduction
2.Nordstream
3.Southstream
4.A Changing European Gas Market
B.Unconventional gas and LNG
C.Gazprom and the economic crisis.
5.Conclusion
Prof. Alan Riley - City University London
Chapter VI: The 2009 Gas Conflict and its Consequences for European Energy Security
2.Russia: Energy and Financial Background Prior to the Crisis
A. The need to “sweep under the carpet” an external business conflict caused by a corporate problem of a current gas deficit
B. Gazprom’s shortage of energy and financial resources
1.Estimate of the current deficit of Gazprom’s resources during the consumption peak in the period of January 1-20, 2009
2.The critical financial standing of Gazprom caused by debts and the price downturn on the main market in the EU
3.Russia: Political and Economic Considerations Behind Unleashing the Crisis
A.Articulated political and economic considerations
B.Russia was also pursuing non-articulated goals
4.Ukraine: Allegations vs Reality
5.Prospects of Gas Transit via Ukraine
6.The Gas Crisis as a “Mirror” of Energy Vulnerability of the EU
7.Resolution of the Crisis and its Consequences
8.Proposals for Enhancement of European Energy Security
Michael Gonchar, Vitalii Martyniuk and Olena Prystayko - Centre for Global Studies - EU Russia Centre Brussels
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Publication date: December 2009 Publication price: 110 EUR
