Case Comment:（Former）Yukos v. Russian Federation before the Permanent Court of Arbitration

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Case Comment:（Former）Yukos v. Russian Federation
before the Permanent Court of Arbitration
Piotr SZWEDO*
1. Introduction

The aim of the present article is to evaluate the crucial legal points of the arbitraldecisions issued under auspices of the Permanent Court of International Arbitration（hereinafter the PCA）on the admissibility and jurisdiction of the claim addressed by Yukos
Universal Limited and others against the Russian Federation1（hereafter: Yukos arbitration,
Yukos decision or Yukos case）.
The different aspects of the dispute brought a lot of attention for several reasons. The
amount of the claim was the highest in the history of international investment law and raised
up to 100 billion dollars2. Moreover, the case was also political in nature and related to theshift in Russian natural resources policy. Different aspects and phases of the case havealready served as the objects of an academic interest3. Eminent scholars - the internationallyrecognized professors of law - were engaged in arbitration itself as experts4.
This comment is focused on the key points of international investment law, which wereanalyzed by arbitrators in case. The first one involves the temporal scope of applicationof the Energy Charter Treaty5（hereinafter the ECT）, which despite the termination ofprovisional application has still produced legal effects. The second question concerns thelegal nature of “Limitation Clause” which identifies the legal nature of relation between
the provisional application of ECT and the Russian law. The third question analyzed in thiscomment is related to the “Denial-of-Benefits” clause, which incorporates the principle ofreciprocity to investment treaties. The final problem is related to the “Fork-in-the-Road”
provision, which bars parties to bring claims in a situation when the same case is already an
object of dispute settlement procedure before an another organ.

* Senior Research Fellow, Department of Public International Law, Jagiellonian University（Krakow, Poland）.
Dr. Szwedo was an EUIJ-Kansai Fellow in February 2010, and held a seminar for the GSICS members
during his stay.
Journal of International Cooperation Studies, Vol.18, No.2（2010.10）

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2. Temporal scope of the ECT’s provisional application

One of the main problems in the first round of Yukos arbitration concerned theprovisional applicability of the European Charter Treaty. An answer to that question – by its
nature – conditions further claims.
According to art. 45 para. 1 of the Energy Charter Treaty ［“ e］ach signatory agrees toapply this Treaty provisionally pending its entry into force［…］”. The provisional applicationof treaties is a well established concept in international law. It was prescribed by the Vienna
Convention on the Law of Treaties6（hereinafter VCLT, see art. 25）. Its rationale is toprovide the applicability of a treaty before the time consuming procedure of ratification by
the negotiating parties is finalized.
The provisional application was a result of Russia’s signature of the ECT in December
1994. The agreement entered into force in 1998. Nevertheless, the Russian Duma refused togive its final approval in 1997 and 20017.
With the appearance of Vladimir Putin as the head of Russian state, a remarkable shift
in the policy of natural resources took place. In the period of Boris Yeltsin, the Russianstate-owned enterprises were privatized, which often resulted in a accumulation of theirownership in the hands of powerful ʻoligarchs’. According to the Putin’s ʻNew Energy
Policy’, the natural resources should serve to regain the economical and political position of
Russia after the collapse of the Soviet Union8. The ECT’s ratification procedure was pending
until 20 August 2009, when the Russian authorities finally declared, that their country would
not seek any longer for the ratification and informed the Portuguese Government about
the termination of provisional application. By this declaration the art. 45. para 3（a）became
fulfilled. It states as follows:“Any signatory may terminate its provisional application of this Treaty by written
notification to the Depository of its intention not to become a Contracting Party to theTreaty. Termination of provisional application for any signatory shall take effect upon the
expiration of 60 days from the date on which such signatory’s written notification is received
by the Depository.”
According to this provision the temporal application of the Energy Charter Treaty
by Russia terminated to operate as of 20 October 20099. Art. 45 para. 3（b）importantly
influences the ECT’s temporal applicability. “In the event that a signatory terminates
provisional application［…］, the obligation of the signatory［…］to apply Parts III and V with

Case Comment:（Former）Yukos v. Russian Federation before the Permanent Court of Arbitration59

respect to any Investments made in its Area during such provisional application by Investorsof other signatories shall nevertheless remain in effect with respect to those Investments fortwenty years following the effective date of termination［…］”.
Art. 45 para 3（b）allows to bring claims arose during the period of provisional
application during twenty years following the termination of provisional application. The
wording “during such provisional application” limits the temporal bases of the fact whichconstituted a breach of one of the ECT’s investor protection requirements. It gives apossibility of bringing claim during 20 years afterwards, i.e. until 19 October 2029 10. It
should be however emphasized, that art. 45 para. 3（b）does only prolong the temporal
scope of invocability but not of protection as such. Therefore the acts which took place after
19 October 2009 would not be protected. However, investors may bring claims against acts
which took place before this date up to 19 October 2029.
3. The legal nature of “Limitation Clause”

The arbitrators in the Yukos case explained the vague meaning of the “Limitation
Clause”. There are two possible ways of limiting the provisional application of the ECT.
Under the art. 45（2）the exclusion of the temporal application is a result of a written
declaration – an option exercised by several ECT state-parties, but not the RussianFederation. The second option is provided by art. 45（1）which states: “Each signatory
agrees to apply this Treaty provisionally pending its entry into force for such signatory inaccordance with Article 44, to the extent that such provisional application is not inconsistent
with its constitution, laws or regulations.” The ECT’s provisional application is therefore
barred by its inconsistency with state-party’s internal law. It constitutes an exception to thewell established principle of domestic’s law irrelevance in observance of international law,
confirmed by the art. 27 of the VCLT: “A party may not invoke the provisions of its internal
law as justification for its failure to perform a treaty”.
The arbitrators clarify, that two opting-out regimes are separate. In case ofinconsistency with the internal law there is no requirement of declaration in order to benefit
from “Limitation Clause” of art. 45（1）. Even if during the negotiations states, “that had
flagged legal problems with provisional applications” were encouraged to make a declarationin order to be transparent, “art. 45（1）did not expressly require any form of declaration inorder to allow the signatory to invoke the Limitation Clause”11. In conclusion, the Russian

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Federation could rely on art. 45（1）even if it made no previous declaration on consistencyof provisional application with its domestic law.
The understanding of relation between paragraphs 45（1）and 45（2）of ECT
represented in Yukos arbitration seems to confirm the previous interpretation presented in
Kardassopoulos case 12. The arbitrators decided, that the application of the “domestic law
exception”（art. 45（1））was not precluded by the lack of declaration on the ground of art.
45（2）13. This coherence was not a big surprise, as both cases were presided by the samechairman: Yves Fortier.
However, the most important point of controversy did not concern the relevanceof previous declaration, but the “Limitation Clause’s” nature. The Russian Federation
represented a “piecemeal” approach, according to which, the expression “to the extent that”
in art. 45（1）referred to the “scope” or the “width” of the provisional application14. Eachtemporally applied provision of ECT should be tested with the domestic law of contracting
party in case. In consequence the ECT’s provisional application would differ from country tocountry even by the states which had no objection in principle to provisional application15.
In its counter-argumentation former Yukos shareholders gave emphasis on terms“such provisional application”16. As their standpoint was summarized: ”Claimant asserts,
each signatory agrees to be bound by the Treaty, if the principle of provisional application isconsistent with the domestic law”17.
The arbitrators did not share the entire argumentation of neither parties, but inconclusion they took a position favorable with the claimant. They referred to words “suchprovisional application” in art. 45（1）, which relates to “the provisional application of thistreaty”18. In consequence, “by signing the ECT, the Russian Federation agreed that theTreaty as a whole would be applied provisionally pending its entry into force unless theprinciple of provisional application itself were inconsistent《with its constitution, laws or
19
regulations》.”（italics in original）
Therefore, the arbitrators opted for “all-or-nothing”

approach, according to which the treaty is provisionally applicable as a whole, because
the principle of provisional application is consistent with domestic “constitution, laws or
regulations”.
It is worth noticing, that in this very crucial element of the dispute, the arbitrators
used textual and contextual methods of interpretation by making reference to Black’s Law
Dictionary and Merriam-Webster Collegiate Dictionary. According to the Tribunals Terms

Case Comment:（Former）Yukos v. Russian Federation before the Permanent Court of Arbitration

61of Appointment, the language of arbitration shall be English 20. However, the dispute isbased on the ECT, which was also adopted in several other authentic languages: French,
German, Russian, Italian and Spanish（art. 50）. It raises a question, if the Tribunals
textualistic reasoning should be reconfirmed in other authentic versions of the ECT. The
linguistic limitation in the Terms of Appointment seems to refer only to conducting theprocedure as such. This conclusion stems out from art. 17 UNCITRAL Arbitration Rules on
which the proceedings were based. ［“ The］determination［of a language to be used in theprocedure］shall apply to the statement of claim, the statement of defense, and any further
written statements and, if oral hearings take place, to the language or languages to be usedin such hearings.” Therefore it does not deprive a possibility to make arguments based onother authentic linguistic versions of a Treaty. Nevertheless, when making such a criticalmethodological remark one has to keep in mind, that the wordings equivalent to “apply
this Treaty provisionally” and “such provisional application” in other languages: French“appliquer le présent traité à titre provisoire” and “cette application provisoire", Italian:“applicazione provvisoria al presente Trattato” and “detta applicatione provvisoria”, Spanish:“aplicar el presente Tratado de manera provisional” and “dicha aplicatión provisional”,
German: “diesen Vertrag［…］vorläufig anzuwenden” and “die vorläufige Anwendung”,
Russian “временно применять настоящий Договор” and “такое временное
применение” seem to be very close to the English version. It should also be admitted, thatthe arbitrators in para. 545 referred to the French version of ECT, where it had an importantmeaning in explanation of the term “third state”.
In the aforementioned Kardassopoulos case the arbitrators analyzed the consistencyof provisional application with the Georgian and Greek Law. In this operation they checked
the legal premises of provisional application of treaties in those two legal systems and not
the consistency of invoked ECT provisions with the domestic law21. Moreover, they madea following statement which was quoted in Yukos arbitration: “It is《this Treaty》which is
to be provisionally applied, i.e., the Treaty as a whole and in its entirety and not just a partof it［…］.［E］ach signatory State is obliged, even before the ECT has formally enteredinto force, to apply the whole ECT as if it had already done so”22. Therefore the arbitrators
in Kardassopoulos opted for “all-or-nothing” approach, which requires a consistency ofprovisional application of treaties with the ECT signatory’s domestic legal system and notfor “piecemeal” approach which requires a consistency of each provision.

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A conclusion similar to the one reached by the Yukos arbitrators was already proposedby Alex M. Niebruegge, however essentially based on a different argument. The “allor-nothing” approach（called by the Author as “take-it-or-leave-it”）was preferred over“piecemeal” approach（called “pick-and-choose”）on the ground of a contextual argument.
Art. 45（2）refers to the declaration of acceptance of provisional application as such.
Therefore, the same term used in the previous paragraph should be similarly interpreted,namely as referring to the principle of provisional application23.
The understanding of “domestic law exception” similar to the one presented by
the arbitrators in the Yukos case was already an object of a critique by certain scholars.
Matthew Belz suggested that such an interpretation reversed the burden of proof, as theinvestor had to verify if the state, applied the treaty provisionally. The Kardassopoulos andin consequence the Yukos reasoning „reduces investor confidence in the ECT“24. However
if “all-or-nothing” approach was consequently applied by the investment arbitrators, the“reduction of confidence” would be considerably lower, than in the case of the “piecemeal”
approach. In the latter case the investor would have to check not only the consistency withdomestic regulations of the provisional applicability of treaties, but to verify the consistencyof entire ECT’s provisions with the whole domestic law of the state, where the investment
was indented. The latter task seems to be much harder.
4. Principle of reciprocity in international investment law - the “Denial-of-Benefits” clause

The disputing parties exchanged numerous arguments concerning the art. 17 of the
ECT, which provides: “Each Contracting Party reserves the right to deny the advantages ofthis Part to:（1）a legal entity if citizens or nationals of a third state own or control such entity andif that entity has no substantial business activities in the Area of the Contracting Party inwhich it is organized”.
The “Denial-of-Benefits” clause is not an entirely new concept in international law and islinked with the principle of reciprocity. Originally it was used to deny diplomatic protection
to “enemy companies.” The clause was later imported into the treaties concerning protectionof foreign investments. 25 At present, the state-parties grant protection to investors of theother state in exchange of protection of their companies abroad.
Investor protection shall not be granted to the so called “shell companies” or “mailbox

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companies”. These would be entities with – in the ECT language - “no substantial business”
with the country of registration. Comparably as in Nottebohm case26 the ICJ required an“effective nationality”, an economic entity must fulfill the requirement of “genuine link”
with the state of corporation. The goal of such regulation is to deny the advantages（i.e.
investment protection）to “free riders” – companies which de facto operate from a state,
which does not provide such a reciprocal protection.
The Tribunal in Yukos arbitration recalled a fundamental remark from Plama v. Bulgariacase, noting that art. 17 refers to advantages granted by Part III of ECT, where as art. 26, a
procedural relief for covered investor’s claims, is situated in Part. V27. Understanding the“Denial-of-Benefits” clause as giving a state a possibility to decide whether an investor has
or not a right to bring a claim against it would be contrary to the well established principle

nemo iudex in causa sua 28. It would give a license for deciding, whether an investor iscovered by ECT at all. Therefore, as art. 17 does not relate to art. 26 and is not a procedural
relief, ［“ w］hether or not Claimant is entitled to the advantages of Part III is a question notof jurisdiction but of the merits”29. At the same time “the Tribunal ［ook］
tnote of the factthat the Parties have treated the application of Article 17 as a question of admissibility,
not jurisdiction”30. For that reason, the arbitrators decided to consider the both parties’arguments based on art. 17, but not in order to determine its own jurisdiction but to find out
if the claim is admissible.
The invocation of the “Denial-of-Benefits” clause requires, under certain treaties as
NAFTA, previous notification and consultation. In the view of Russian Federation, as ECT
does not provide such a requirement, a contrario the responding state may invoke the denialof benefits solely on the ground of the lack of “substantial business”. Moreover, ［“ i］n order
to benefit from Treaty protections,［…］a company that comes within the scope of Article 17
must obtain a commitment from the host State, that it will be treated as a protected investor.
No such commitments have been obtained.”31.
The claimants based their argumentation on the distinction between “existence” and“exercise” of the right to deny the benefits, which was already applied in the Plama v.
Bulgaria case32. Concerning the investors alleged obligation to obtain a “commitment ofprotection” they also recalled the expert opinion of professor James Crawford: ［“ t］o place
on an individual investor the task of obtaining express assurance as to the extension ofadvantages would change the ECT from a general framework for investment in the energy

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sector to an invitation to establish, case-by-case, bilateral relations between investors and thehost State. This was plainly not the intention.”33
The Tribunal shared the arguments presented by the claimants. Moreover, such denialof benefits may never be retrospective as it would be “incompatible《with the objectives andprinciples of the Charter》. Paramount among those objectives and principles is《Promotion,
Protection and Treatment of Investments》as specified by the terms of Article 10 of theTreaty”.34
The arbitrators in Plama v. Bulgaria case explained, how such right to deny the benefits
should be exercised: ［“ it］would necessarily be associated with publicity or other notice so
as to become reasonably available to investors and their advisers. To this end, a declaration
in a Contracting State’s official gazette could suffice; or a statutory provision in a Contracting
State’s investment or other laws; or even an exchange of letters with a particular investor
or class of investors.［…］By itself, Article 17（1）ECT is at best only half a notice; without
further reasonable notice of its exercise by the host state, its terms tell investor little; and forall practical purposes, something more is needed”35. The exercise of right must be therefore
an explicit act of a state. ECT gives a state a competence to potentially exercise such right.
Therefore, the Plama decision could be treated as a guidance: a prudent state will make adeclaration in its official gazette regarding the exercise of the rights under Article 17 of the
ECT36.
In Yukos case the claimants conceded that they did not conduct “substantial business”
in the Island of Man37. The Tribunal analyzed the question of ownership and control issue,
even if such a problem was moot as a consequence of the notification requirement. It
was settled rather because of “the substantial effort and resources the Parties expended
in order to present the relevant facts, arguments and expert opinions on this issue,［…］also because it recognizes that［…］the ownership/control structure more generally［…］
may well feature in Respondent’s arguments and allegations in any merits phase of thisarbitration”38. In its conclusions the Tribunal found that “transferring assets pursuant to atrust instrument is a centuries-old institution of the English common law［…］recognizedinternationally today pursuant to the Hague Convention on the Law Applicable to Trusts
and their Recognition of 1 July 1985.［…］To do so would put into question the validity ofthe very concept of trusts at a time when their recognition goes well beyond the commonlaw countries.” 39. Acceptance of trusts in the Russian law was further postponed to beCase Comment:（Former）Yukos v. Russian Federation before the Permanent Court of Arbitration

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developed in the merits phase. However, the Tribunal declared that the companies owningor controlling the claimant are “UK nationals,［…a］ccordingly, they are not《nationals of athird state》. Therefore, Article 17（1）does not apply to Claimant.”40
Moreover, the arbitrators analyzed the term “third state” which appears in art. 17.
They concluded that this status may not be attributed to the Russian Federation as, as thelanguage of the treaty distinguishes between “third states” and “contradicting parties”41.
Russian Federation may not be treated as a “third state”, and in conclusion the “Denial-ofBenefits” clause is not applicable in case.
5. International investment law in polycentric legal system – “The Fork-in-the-Road”
provision

In Yukos arbitration, the Tribunal developed the meaning of the “Fork-in-the-Road”
provision. It is a metaphor of an important decision which has to be taken by the claimant,
when advancing its proceedings. Art. 26（3）（b）provides that: “The Contracting Parties［…］do not give such unconditional consent［to the submission of a dispute to international
arbitration or conciliation］where the Investor has previously submitted the dispute undersubparagraph 2（a）or（b）”. The rationale of the mentioned article is no exception ininternational law and requires the parties to submit their claims to one dispute settlement
organ only. The aim is to reduce the number of claims submitted to such organs and to
avoid their possible undermining of authorities by issuance of contradictory decisions.
“Fork-in-the-Road” provisions can be also found in various international agreements, forexample art. 35（2）（b）of the European Convention of Human Rights and Fundamental
Freedoms: “The Court shall not deal with any application submitted under Article 34 that［…］has already been submitted to another procedure of international investigation orsettlement and contains no relevant new information”42. They are also present in Bilateral
Investment Treaties and were already object of arbitrator’s analysis. Pantechniki case
based on Albania-Greece BIT may serve as an example. Art. 10（2）provides, that: “theContractning Party concerned may submit the dispute either to the competent court or theContracting Party or to an international arbitration Tribunal”43. The Claimant had to decide
whether to bring a claim to a national or an international court. Because the claimant alreadysubmitted its proceedings to Albanian courts, the responded brought the “Fork-in-the-Road”
argument in ICSID proceedings. The arbitrator based its reasoning on previous Woodruf

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and Vivendi cases and applied the test of “fundamental basis of claims”, which aims to“assess whether the same dispute has been submitted to both national and internationalfora”44. Because claims before national and international dispute settlement organs werebased on contractual breaches, and the Greek-Albanian BIT contained no “umbrella clause”,
the arbitrator concluded, that treaty claims had no autonomous existence to contractual
claims. As one commentator remarked: ［“ b］efore Pantechniki, it was widely accepted thatfor a《The Fork-in-the-Road》clause to have been triggered, the parties and the claims in
the proceedings before the domestic courts and under the treaty, before the investor-state
tribunal, must be identical. Tribunals routinely ruled that claims under contract, governedby municipal law and seeking contractual remedies, were legally distinct from claims under
an investment treaty, governed by public international law and invoking state responsibility.
Pantechniki represents a marked departure from the prevailing jurisprudence by adopting
a qualitative test that looks at the subject-matter of the claims, as opposed to their legal
character.”45
In the Yukos arbitration, which was issued only a few months after Pantechniki
decision, the arbitrators returned to a more liberal understanding of the “Fork-in-the-Road”
provision. The respondent raised the argument, that the claim was inadmissible as it was
already submitted to Russian courts and the European Court of Human Rights 46. They
arbitrators applied a “triple identity test”: identity of parties, cause of action and object of the
dispute47. They stated, “that by virtue of its claim under the ECT［the claimant］does notappeal from any decision of the Russian courts or seek to have determined by the present
Tribunal whether any of those cases was rightly or wrongly decided as a matter of Russianlaw”48. Therefore both proceedings are independent, and the “Fork-in-the-Road” exception
does not preclude arbitrator’s jurisdiction in case.
6. Conclusions

It is beyond doubt, that the Yukos arbitration will constitute one of the most importantinternational investment cases ever. Apart from its economical and political importance,
the decision draws also a line of future jurisprudence concerning important international
investment treaty clauses.
The interpretation of ECT’s art. 45 is particularly important as it prejudges that thistreaty is provisionally applicable, when the concept（principle）of provisional application

Case Comment:（Former）Yukos v. Russian Federation before the Permanent Court of Arbitration

67of treaties is not inconsistent with the state-party’s internal law. The arbitrators opted foran “all-or-nothing” approach, instead of “piecemeal” approach, which would require an
examination of each ECT’s provision with the state-party’s domestic law.
The “Denial-of-Benefits” clause（art. 17）, which incorporates into the international
investment law the principle of reciprocal protection, may not serve as “a hamper” oftribunal’s jurisdiction, and its invocation requires a previous exercise of the right to deny thebenefits. Such exercise should constitute an explicit act of the state.
The Yukos arbitration is also a step towards a liberal interpretation of the “Fork-inthe-road” provision. The PCA did not share the previous conclusions of Pantechniki award
and required a triple identity test of cases: identity of parties, cause of action and objectof the dispute. As the dispute based on treaty did not constitute an appeal in the domestic
procedure, the identity test was not fulfilled and the “Fork-in-the-road” exception was notapplicable.
The decision confirms that international dispute settlement mechanisms may serve as
efficient fora of defense of interests even against political superpowers. The Yukos decisions
may create an encouragement for further investment claims against the Russian Federation
based on the provisional application of the ECT49. The developments around Yukos
arbitration can be also seen as a part of a larger phenomenon which Kremlin has to takeunder consideration: the possible influence of private parties on its decision making processby the application of different international legal instruments which includes not only cases
before the European Court of Human Rights.

Notes
1

PCA Case No. AA 227, In the Matter of an Arbitration before a Tribunal Constituted In accordancewith Article 26 of the Energy Charter Treaty and the UNCITRAL Arbitration Rules 1976, between
Yukos Universal Limited（Isle of Man）and the Russian Federation, Interim Award on Jurisdiction and
Admissibility, 30 November 2009. On the same day the PCA issued other two decisions in a triplet case:
PCA Case No. AA 226, In the Matter of an Arbitration before a Tribunal Constituted In accordance with
Article 26 of the Energy Charter Treaty and the UNCITRAL Arbitration Rules 1976, between HulleyEnterprises Limited（Cyprus）and the Russian Federation, Interim Award on Jurisdiction and Admissibility,
30 November 2009 and PCA Case No. AA 228, In the Matter of an Arbitration before a Tribunal Constituted
In accordance with Article 26 of the Energy Charter Treaty and the UNCITRAL Arbitration Rules 1976,
between Veteran Petroleum Limited（Cyprus）and the Russian Federation, Interim Award on Jurisdiction
and Admissibility, 30 November 2009. All three decisions were published in the beginning of February 2010
and are available at the ECT website: http://www.encharter.org/index.php?id=213&L=1%2F%2F%2F%5C%
5C%5C, last seen on 24th June 2010. The texts of awards differ only in parts concerning the ownership andcontrol of investment by three claiming enterprises（parts VIII.B. and C.3.）and in the rest are identical. In

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this comment I will refer to the text of award in the case brought by Yukos Universal Limited（Isle of Man）,
but conclusions should be related to all three arbitrations. The expression “Yukos” used in the title of the КОC）, which was declared
present article refers to Yukos Oil Company（Russian: ОАО Нефтянáя Компáния Ю
bankrupt in 2006 in consequence of lack of settlement of Russian tax claims.
2 Sum of claims in all three cases mentioned in footnote １.
3 Matteo M. Winkler, Arbitration without Privity and Russian Oil: the Yukos Case Before the Houston
Court, 27 University of Pennsylvania Journal of International Economic Law 115; Alex M. Niebruegge,

4

Provisional Application of the Energy Charter Treaty: The Yukos Arbitration and the Future Place ofProvisional Application in International Law, 8 Chicago Journal of International Law 355; Brenden Marino
Carbonell, Concerning the Kremlin: Defending Yukos and TNK-BP from Strategic Expropriation by the
Russian State, 12 University of Pennsylvania Journal of Business Law 257.

Including professors（in order of appearance of their opinions in the award）: Suren Avakiyan, Daniel
Berman, Alexey Kostin, Martti Koskenniemi, Yevgeny Sukhanov, Gerhard Hafner, Igor Lukashuk, Georg
Nolte, Angelika Nussberger, Alain Pellet, Myron Norquist, Stef van Weeghel, Andrey Lisitsyn-Svetlanov,James Crawford, W. Michael Reisman.
5 The Energy Charter Treaty, 17 December 1994, 2080 U.N.T.S. 100.
6 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331.
7 Yukos arbitration, fn. １, para. 37.
8 More on that subject see: Brenden Marino Carbonell, Concerning the Kremlin, fn. ３, 261-267.
9 Yukos arbitration, fn. １, para. 39.
10 See Yukos arbitration, fn. １, para. 339.
11 Id., para. 283.
12 Ioannis Kardassopoulos vs. Georgia, ICSID Case No. ARB/05/18.
13 Id. para. 228.
14 See Yukos arbitration, fn. １, para. 294.
15 Id.
16 Id., para. 302.
17 Id., para. 295.
18 Id., para. 305.
19 Id., para. 301.
20 Id., para. 12.
21 Ioannis Kardassopoulos vs. Georgia, fn. １２, especially paras. 231-246.
22 Id., paras. 210, 211.
23 See Alex M. Niebruegge, Provisional Application, fn. ３, 368-369.
24 Matthew Belz, Provisional Application of the Energy Charter Treaty: Kardassopoulos v. Georgia andImproving provisional Application in Multilateral Treaties, 22 Emory International Law Review, 727, 745.
25 Loukas A. Mistelis, Crina Mihaela Baltag, Denial of Benefits and Article 17 of the Energy Charter
Treaty, 113 Penn State Law Review 1301, 1302.
26 Nottebohm Case（Liechtenstein v. Guatemala）, 1955 I.C.J. 4（April 6, 1955）.
27 Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Decision on Jurisdictionof 8 February 2005,（2005）20:1 ICSID Review 262, para. 148, quoted in Yukos arbitration, fn. １, para.
442.
28 See Plama v Bulgaria, fn ２７, para. 149.
29 See Yukos arbitration, fn. １, para. 441.
30 Id., para. 443.
31 Id., para. 446.
32 Plama v Bulgaria, fn ２７, para 155, quoted in Yukos arbitration, fn. １, paras. 282 and 449.
33 Para. 118 of the Expert Opinion quoted in Yukos arbitration, fn. １, paras. 281 and 448.
34 Yukos arbitration, fn. １, para. 458.
35 Plama v Bulgaria, fn ２７, para. 157.
36 Cf. Laurence Shore, The jurisdiction problem in Energy Charter Treaty claims, 10 International
Arbitration Law Review, 63.
37 Yukos arbitration, fn. １, para. 461.
38 Id., para. 500.

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39 Id., para. 535.
40 Id., para. 537.
41 Id., paras. 545, 546.
42 The European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S.
222.
43 Pantechniki S.A. Contractors & Engineers（Greece）v. the Republic of Albania, ICSID Case No.
ARB/07/21, para. 53.
44 Id., para. 61.
45 Anthony Sinclair, Allen & Overy LLP, Fork-in-the-road provisions in investment treaties, 4 Nov. 2009,
available at http://www.allenovery.com/AOWEB/AreasOfExpertise/Editorial.aspx?contentTypeID=1&itemI
D=53649&prefLangID=410, last seen on 23rd June 2010.
46 See Yukos arbitration, fn. １, para. 71, Respondents Skeleton Argument para. 53.
47 See Yukos arbitration, fn. １, para. 593.
48 Id., para. 600.
49 Alex M. Niebruegge, already reported on alleged breaches of investment protection in Sakhalin Project II,
see Provisional Application, fn. ３, 371-373.