نوع مقاله : علمی پژوهشی
1 عضو هیات علمی دانشکده حقوق دانشگاه شهید بهشتی
2 کارشناسی ارشد حقوق تجارت بینالملل دانشکده حقوق دانشگاه شهید بهشتی
عنوان مقاله [English]
The long gap between signature and entry into force of International Treaties (“Treaties”) encouraged the drafters of some Treaties to implement the Provisional Application mechanism in order to give effect to Treaties’ provisions prior to completion of the internal ratification process and entry into force. The drafters of the Energy Charter Treaty (“ECT”) incorporated the controversial concept of Provisional Application under Article 45 of the ECT in order to accelerate the application of the ECT. According to this Article, States agree to give effect to ECT’s obligations upon signature and prior to the ratification of the ECT. Article 45 includes limitations and mechanisms for the exemption from the provisional application in order to prevent the conflicts between the provisional application and signatories’ legal systems and moreover to assure States’ independency in provisional application of the ECT. In this regard, a great deal of ambiguities relating to the interaction and the limitations of the provisional application and its effects have been emerged that have a prominent impact on investor’s rights and signatory’s obligations. Furthermore, this issue has led to disputes between investors and host States. The limitations of provisional application of the ECT have been analyzed by Investment Arbitral Tribunals, but they have played a peerless role in the matter between Yukos majority shareholders and Russia in a way that after annulment of the arbitral tribunal’s award by the Hague District Court, the enforcement of the largest arbitral award of the history is contingent upon the interpretation of Article 45 of the ECT by the Hague Court of Appeal.
- Reportsand International Documents
- Codes and Regulations