The Journal of World Energy Law & Business 2008 1(1):55-97; doi:10.1093/jwelb/jwn005
© The Author 2008. Published by Oxford University Press on behalf of the AIPN. All rights reserved.
Renegotiating acquired rights in the oil and gas industries: Industry and political cycles meet the rule of law
Thomas W. Wälde*
* Dr. iur (Frankfurt), LLM. (Harvard), Professor and Jean-Monnet Chair, CEPMLP, University of Dundee; Rechtsanwalt (Frankfurt) and barrister (Essex Court Chambers/Lincoln’s Inn (London)).
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1. The issue: Do the instruments of good governance and the rule of law have any significance when faced with the force of the energy and resource industries cycles?
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As we experience a so far sustained upwards trend in the price
of petroleum and minerals,
1 governments of producing countries
worldwide are engaged in a fundamental revision of the terms
under which international investors originally carried out their
investment.
2 Changes are most extensive in the cases where contracts
with host states (or their state enterprises) were negotiated
in times of relatively low oil, gas and mineral prices (in particular
between 1985 and 1999); in the cases where a fundamental re-orientation
of a host state’s policy towards foreign and private investment
has taken place (eg in countries where governments now pursue
a policy of anti-Western (in particular anti-USA) resource nationalism);
and in the cases where new governments have reversed visibly
and significantly the policies of privatization of state-owned
operated upstream oil and gas and mining assets carried out
in the 1990s. The renegotiation demands are more acute where
the original contracts
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2. Context of current energy and resource investment disputes
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3. What does this mean for the dynamics of investment disputes?
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4. Types and dynamics of investment disputes
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5. Rights, rules and procedures cannot resist the forces of the cycle – But they can proceduralize conflict and make the inevitable changes more palatable
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6. The 'rule of law': Primarily a concept of Western culture?
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7. International protection of investor rights: The grand experiment of anchoring western ‘rule of law’ by way of international law and adjudication
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8. Conclusion
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