Gordon E Kaiser, Energy Arbitration Chambers
This is an extract from the fourth edition of GAR’s The Guide to Energy Arbitrations. The whole publication is available here.
In the foreword to the first edition of this book, Andrew Clarke of ExxonMobil International sets out the costs and benefits of arbitration in the oil and gas world. It is worth repeating:
While it is by no means perfect, international arbitration has become the primary mechanism by which disputes are resolved in the oil and gas industry. For cross-border transactions involving parties from a broad range of jurisdictions, or disputes between an investor and a state, there is no practical alternative. It provides the opportunity for an impartial, independent determination of a dispute with an established mechanism for the enforcement of awards in most jurisdictions in the world under the auspices of the New York Arbitration Convention of 1958. Unfortunately, the dispute resolution process itself is becoming increasingly complex and uncertain, adding a further layer of difficulty to the parties finding solutions to their disputes. The time and cost associated with international arbitration now compares unfavourably with litigation (which was never a good benchmark in the first place). Extended document disclosure requests and the willingness of arbitrators to accede to them is burying the process in indiscriminate evidence. And, despite the inherent flexibility and the discretion vested in the arbitrators, first procedural orders are not always designed to meet the specific needs of the parties or the dispute, nor do they provide for an efficient and cost-effective process. This fourth perspective is a cause of concern as uncertainty over the outcome of dispute resolution process only creates additional work and delay, benefiting the international arbitration industry and not the parties it is designed to serve.
Andrew Clarke looks at arbitration as a user, rather than a supplier. In his foreword, he is quite critical of some of the practices that have developed in oil and gas arbitration. But as he notes, in that world (i.e., the investor-state world), there is no practical alternative: arbitration is the only game in town. The parties need a neutral adjudicator, and they need the ability to enforce that award around the world. Only arbitration can provide that.
Andrew Clarke notes that the time and cost associated with international arbitration no longer compares favourably with litigation. He points to the extended disclosure requirements and the willingness of arbitrators to accede to them in burying the process in indiscriminate evidence. There is no doubt that this happens. But it gets worse: there is also unnecessary duplication of proceedings and bifurcation of issues. To some extent the energy sector is the poster child of this abuse.
Duplicate proceedings
Duplicate proceedings are a good example. Spain now faces 40 arbitrations dealing with the same issue, namely whether the Spanish government was entitled to change the incentive plans to attract new investment in solar energy. It may be surprising to some that there has been so little success in consolidating the claims.
This practice is not unique to Spain or the Energy Charter Treaty. In the Canadian province of Alberta, the government created power purchase agreements by which 12 generators would sell electricity to contracting parties. The agreements are virtually identical and were created by regulation and approved by the Alberta regulator. All the agreements have identical arbitration provisions.
Every one of these agreements has been subject to an arbitration under the Alberta Rules. The issue is virtually the same in each case: what is the proper treatment of inflationary indices to adjust the costs the generators are entitled to recover? These arbitrations are all confidential, with the result that common issues are constantly being relitigated. This is no one’s fault, but it does point to costly inefficiency.
The other unfortunate development is the increasingly common practice to bifurcate issues. This started with preliminary objections to jurisdiction. (It is not unusual for those to last two years.) More recently we have developed a tendency to bifurcate the liability and damage phases of the arbitration. In Mobil Investments, the majority delivered its award on liability in May 2012. The final award on damages was delivered in February 2015. The same thing happened in Bilcon. The majority delivered its award in March 2015. The damages proceedings took more than two years.
The public policy conflict
Arbitration in the energy sector today faces a full-blown public policy conflict. Private parties are exercising their rights to attack legislation enacted by the host country to address domestic public policy concerns. The rationale for the claimants is that the change in government policy has a negative effect on their business and investment opportunities. This raises the fundamental question of whether host countries can regulate in the public interest or whether regulations and legislation must be frozen in time.
Although the North American Free Trade Agreement (NAFTA) has been a major focus, these issues are not limited to Canada, the United States and Mexico. The German government was not amused when a private party questioned the country’s ability to phase out nuclear power any more than the US government was happy when Canadian companies attempted to derail regulations designed to protect Californian drinking water. Nor were Canadians happy when US companies attempted to strike down Canadian bans on fracking, pesticides or offshore wind development.
Governments were quick to respond that private corporations were using NAFTA to curtail the right of governments to regulate in the public interest. This debate soon became worldwide, driven by leading academics and arbitrators. This debate is not limited to NAFTA. The same issue arose under the Energy Charter Treaty. which followed NAFTA in 1994. There are currently more than 30 arbitration claims under that Treaty challenging the legislation by four different European governments to change their incentive programmes for renewable energy without notice.
The real concern may be that we have inadvertently created an ‘appeal court of last resort’. In most cases, NAFTA parties first litigate in domestic courts and then appeal to NAFTA. NAFTA offers definite advantages. Damages are available under NAFTA, something that does not always exist under domestic administrative law. In Apotex and Eli Lilly, both companies first went to the Canadian Federal Court to contest patent rulings. When they failed, they went to NAFTA. Bilcon appealed the ruling of the Nova Scotia Environmental Commission to a local court. When that failed, they went to NAFTA, where they succeeded.
Mercer International went first to the British Columbia Utility Commission. When that did not work out, they went to NAFTA. Mobil Investments first appealed the Newfoundland Board R&D directive to the local courts. When the company lost, it went to NAFTA, where it succeeded.
To make matters worse, NAFTA is a unique appeal court. Only foreign investors can bring cases. Consider the cases involving the Ontario ban on wind generation. An American company, Windstream, obtained a C$28 million judgment from a NAFTA panel when Ontario cancelled the programme. Trillium Power, a Canadian company with the same complaint, was out of luck in the Ontario courts. The same thing happened in SkyPower. There the judge remarked: ‘While it may sometimes seem unfair when rules are changed in the middle of a game, that is the nature of the game when one is dealing with government programs.’
Arbitration under attack
The next group of opponents are those that just do not like arbitrators. This group believes there should be an investment court with appeal procedures. It is an open question whether a multinational investment court will give us better decisions than arbitration panels. There is also a question of whether the Americans would buy into that concept, given the isolationist tendencies of the new administration. The Canadians seem to have bought into the concept. Courts have replaced arbitrators in the recently signed EU–Canada Trade Agreement (CETA).
Much of the analysis in NAFTA cases centres on the rights of the investor, the definitions of legitimate expectations and indirect expropriation. But what about the state’s rights? The state must have a right to regulate; it certainly has responsibilities to do so.
Few would object to states exercising this jurisdiction provided they act in good faith, and do not discriminate or expropriate private property without fair compensation. The NAFTA decisions in Methanex and Chemtura seem to support this proposition.
In Chemtura, a US manufacturer of lindane (an agricultural insecticide moderately hazardous to human health and the environment) claimed a breach of NAFTA by Canada’s prohibition of its sale. The tribunal rejected the claim, stating:
Irrespective of the existence of a contractual deprivation, the Tribunal considers in any event that the measures challenged by the Claimant constituted a valid exercise of the Respondent’s police powers. As discussed in detail in connection with Article 1105 of NAFTA, the PMRA took measures within its mandate, in a non-discriminatory manner, motivated by the increasing awareness of the dangers presented by lindane for human health and the environment. A measure adopted under such circumstances is a valid exercise of the State’s police powers and, as a result, does not constitute an expropriation.
In investor-state arbitrations, arbitrators grant deference to governments, particularly when those governments are carrying out a regulatory function for which the public interest is the dominant test.
In Mesa Power, the tribunal pointed to the deference that NAFTA Chapter 11 tribunals usually grant to governments when it comes to assessing how they regulate and manage their affairs. The tribunal stated:
In reviewing this alleged breach, the Tribunal must bear in mind the deference which NAFTA Chapter 11 tribunals owe a state when it comes to assessing how to regulate and manage its affairs. This deference notably applies to the decision to enter into investment agreements. As noted by the S.D. Myers tribunal, ‘[w]hen interpreting and applying the “minimum standard”, a Chapter Eleven tribunal does not have an open-ended mandate to second-guess government decision-making.’ The tribunal in Bilcon, a case which the Claimant has cited with approval, also held that ‘[t]he imprudent exercise of discretion or even outright mistakes do not, as a rule, lead to a breach of the international minimum standard.’
In addition to the references in SD Myers and Bilcon pointed out by the Mesa Power tribunal, we can add the tribunal’s comments in Thunderbird that the state ‘has a wide discretion with respect to how it carries out such policies by regulation and administrative conduct’.
Every country has its team
Arbitration has its imperfections and many are referred to above. Energy arbitration, and particularly renewable energy arbitration, has created a unique challenge. When a country like Spain faces 40 claims on essentially the same issue within a short time, strange things happen. Other countries face the same situation. All these claims worldwide are driven by ambitious incentive programmes to reduce carbon consumption.
Increasingly, each country has its unique team composed of the same law firms and, in many cases, the same arbitrators. Partisan dissents are becoming commonplace as are arbitrator challenges. It is not clear what the solution is but there certainly is a growing problem.
There is widespread agreement that the investor-state dispute resolution process requires serious reform. This is particularly true in the energy sector. There is a clear conflict between the interests of private corporations and the public interest mandate of states. The process as currently structured is not capable of balancing these competing interests in a meaningful and predictable fashion. It is likely to be a long and challenging discussion.
A new arbitration landscape
The foregoing was written in September 2018, when the third edition was published. At that time we were trying to forecast the future for energy arbitration. It turns out we were right on most points. Renewable energy has dramatically changed energy markets and energy policy. It also promises to change the face of arbitration.
In 2019, two-thirds of new global electricity generation came from wind and solar. The threat of climate change affected governments around the world. Many established incentives to attract new green energy. Spain, Czechoslovakia, Italy and Canada were the leaders. Many of the new incentive programmes were not clearly thought out. It turned out that green energy was more expensive than forecast. At the same time the demand for electricity began to decline as a result of broad-based conservation efforts.
Governments attempted to eliminate the programmes or least reduce their commitments. A wave of arbitrations resulted. At last count, more than 100 arbitrations dealing with renewable energy were on the table. Some were new, some started years ago. In some cases, the investors won; in others, they lost. But there was collateral damage.
The collateral damage was a huge increase in the number of attempts to disqualify arbitrators and set aside awards. This development has affected arbitration practice and procedure. As investors attempted to protect their investments, it created a major conflict with states attempting to protect their energy policy. This is now known as the right to regulate. To make matters worse, it was pointed out that when the investor was a domestic party, it could not challenge the government’s right to legislate or regulate. But if that investor was foreign, it was a different story.
In 2009, the Honourable Charles Brower set out the advantages of investor-state dispute resolution, stating:
The investors right to initiate arbitration enables the host state to make credible the commitments it has made under its investment treaties. This, in turn, reduces the political risk of foreign investment, lowers the risk premium connected to it, and therefore makes investor projects more cost-efficient. This increase in efficiency benefits not only investors, but also the host state, as the products and services that a foreign investor offers becomes cheaper.
Others, including Chief Justice John Roberts of the US Supreme Court, are more critical of the right of private arbitrators to challenge states’ right to regulate. He commented that NAFTA arbitration panels hold alarming power to review the laws and ‘effectively annul the authoritative acts of its legislature, executive, and judiciary’. They ‘can meet literally anywhere in the world’ and ‘sit in judgment on its sovereign acts’.
The NAFTA renegotiation became the poster child for this debate. In the end Canada and the United States agreed to eliminate investor-state arbitration entirely. The bad news does not end there. While state-to-state arbitration was preserved, the ability of private parties to appoint private arbitrators is also gone. Now arbitrators are appointed by the state. There is a standing panel and the arbitration process looks very much like a court proceeding.
The negotiators in NAFTA also decided to reform the arbitration process. They incorporated in the new United States-Mexico-Canada Agreement (USMCA) the Conflict of Interest Guidelines established by the International Bar Association (IBA). The negotiators and the countries they acted for clearly felt that the IBA Guidelines were not being enforced. They were no doubt influenced by the large number of attempts to disqualify arbitrators in the renewable energy cases during the past two years.
The movement to state-appointed arbitration panels is not unique to the new USMCA. The European Commission has long been on this path and has established bilateral investment courts in agreements with both Canada and Mexico. New Zealand and South Africa are also headed down the same path.
The backlash
The past 10 years have seen enormous growth in the amount of arbitration worldwide. The energy sector has been leading that charge. The basic concerns were set out by 200 US economists in a letter to President Trump in October 2017, asking him to remove investor-state dispute settlement (ISDS) from NAFTA and to leave ISDS out of any other future trade agreement:
ISDS grants foreign corporations and investors rights to skirt domestic courts and instead initiate proceedings against sovereign governments before tribunals of three private sector lawyers. In those proceedings, foreign investors can demand taxpayer compensation for laws, court rulings and other government actions that the investors claim violate loosely defined rights provided in a trade agreement or investment treaty. The merits of those rulings are not subject to appeal, but are fully enforceable against the US government in US courts.
The problem with ISDS is not that it allows private corporations to sue the government for conduct that harms the corporations’ economic interests. Indeed, US domestic law already recognizes the importance of granting private citizens and entities (including foreign corporations) the power to take legal action against the government in order to help promote effective implementation of the law and adherence to the Constitution.
However, through ISDS, the federal government grants foreign investors ‒ and foreign investors alone ‒ the ability to bypass the robust, nuanced, and democratically responsive US legal framework. Foreign investors are able to frame questions of domestic constitutional and administrative law as treaty claims and take those claims to a panel of private international arbitrators, circumventing local, state or federal domestic administrative bodies and courts. ISDS thus undermines the important roles of our domestic and democratic institutions, threatens domestic sovereignty and weakens the rule of law.
In addition to the central problem of establishing a parallel and privileged set of legal rights and recourse for foreign economic actors operating here, ISDS proceedings lack many of the basic protections and procedures normally available in a court of law. There are no mechanisms for domestic citizens or entities affected by ISDS cases to intervene or meaningfully participate in the disputes; there is no appeals process and therefore no way of addressing errors of law or fact made in arbitral decisions; and there is no oversight or accountability of the private lawyers who serve as arbitrators, many of whom rotate between being arbitrators and bringing cases for corporations against governments.
The United States has typically agreed to supranational adjudication only in exceptional cases and after resolving a range of complex considerations about the scope and depth of supranational authority over domestic policies and the available remedies to aggrieved parties. The inclusion of ISDS in US trade and investment deals brushes aside these complex concerns and threatens to dilute constitutional protections, weaken the judicial branch, and outsource our domestic legal system to a system of private arbitration that is isolated from essential checks and balances.
For these reasons, we urge you to stop any expansion of ISDS – namely through the China BIT and the TTIP – and to eliminate ISDS from past US trade deals, beginning with NAFTA.
What’s next?
The avalanche of renewable energy cases created a perfect storm. When 100 cases land in two years on the same issue strange things can happen. Two years ago in this Conclusion, we noted that each party had its own team. This has proven to be the case. This is not restricted to counsel – it includes favourite arbitrators and experts. The result was an unprecedented increase in applications to disqualify arbitrators and to annul decisions.
The changing face of arbitration may prove to be unfortunate. Twenty-five years ago when NAFTA was first implemented, the energy sector welcomed investor-state dispute resolution. Energy companies searching for oil and gas in foreign countries did not trust the local courts to sort out disputes. Arbitration was seen as a way to guarantee a neutral judge. The move to state-appointed panels takes that away.
The loss of the right to appoint arbitrators is one thing – the loss of the right to initiate an arbitration claim is another. It may be more important.
During the first 25 years of NAFTA, 97 disputes were initiated. It is a good bet that fewer than half of that number will be initiated under the USMCA. It is an even better bet that the new Agreement will not last 25 years.
The USMCA contains a sunset clause in Chapter 34 and has a 16-year term. More importantly, every six years the United States, Canada and Mexico will conduct a joint review to decide whether to extend the term of the Agreement for another 16 years. We forget that the purpose of international trade agreements is to increase foreign investment by decreasing investor risk. Trade agreements with indefinite terms are not a step in the right direction.
The new rules
The six-year review will have further implications for international arbitration. States are starting to micromanage the arbitration process. Reference has already been made to the IBA Guidelines on Conflict of Interest. The USMCA also provides new and fundamental changes to arbitration rules.
Disputing parties are now given the right to review and comment on a tribunal’s award and liability prior to its issuance. The new Agreement also provides for an expedited hearing procedure for objections to jurisdiction or claims without legal merit.
A number of ambiguities that have developed under international arbitration law are clarified. The USMCA limits the types of claims that can be brought compared to NAFTA. Two of the most common claims under NAFTA – indirect expropriation and breach of the minimum standard of treatment – are no longer covered. The USMCA also limits the scope of fair and equitable treatment and full protection and security by giving these terms specific definitions.
The most dramatic change is the provision that the most-favoured nation clause (Article 14.5) cannot be used to import standards and jurisprudence from other treaties. So much for the concept of international arbitration law and stare decisis.
The NAFTA renegotiation is leading the charge to greater state control over the arbitration process. This includes micromanaging arbitration rules, practice and procedure. There will be no shortage of rules in this new world.
There will be the rules of private institutions such as the American Arbitration Association, JAMS, the Chartered Institute of Arbitrators and the London Court of International Arbitration. Then there will be the rules of government institutions such United Nations Commission on International Trade Law and the International Chamber of Commerce. Last but not least there will be the procedural rules embedded in new treaties.
The USMCA will be reviewed every six years. The first question will be whether it should be extended. The second question will be whether the rules should be amended. The new arbitration landscape will become much more complicated.
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