The energy sector continues to generate a disproportionate share of investment treaty arbitration claims. This article surveys the key trends and examines the implications of recent awards for energy investors and host states.
The energy sector has long been the most fertile ground for investment treaty arbitration, accounting for approximately 30% of all ICSID cases. The past decade has seen a significant evolution in the legal landscape, driven by the energy transition, the rise of renewable energy disputes, and the increasing sophistication of host state defences.
This article examines three key trends: the growing importance of the fair and equitable treatment standard in energy disputes; the development of the 'legitimate expectations' doctrine in the context of renewable energy subsidies; and the increasing use of counterclaims by host states in investment treaty proceedings.
The article draws on the authors' experience in a number of leading energy arbitrations, including the landmark award in Sahara Energy Ltd v. State of Maghrebia (ICC 2022), which provides important guidance on the calculation of damages in long-term production-sharing disputes.
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About the Author
Amara Diallo KC
King's Counsel
Amara Diallo KC is widely regarded as one of the leading investment treaty arbitration practitioners at the international Bar. She has acted as advocate and arbitrator in over 80 international arbitrations, with a particular focus on disputes in the energy, mining, and infrastructure sectors. Amara is a member of the ICC International Court of Arbitration, a Fellow of the Chartered Institute of Arbitrators, and sits on the ICSID Panel of Arbitrators. She is fluent in English, French, and Arabic.