The Fiction of ‘State Contract’ in the Energy Industry: The Empirical Gap Between the Intentions of the Parties and the Interpretation of Contracts by Arbitral Tribunals

International Arbitration Law Library Contracts designed expressly to accommodate foreign energy investment and protect companies’ rights underlie most investor-State arbitrations when disputes over energy exploration, facilities, or distribution arise. But do the parties really use such state contracts as a protection tool? This book analyses whether signing of a state contract can be deemed the safest and most predictable way for a private party to protect its interests vis-à-vis a host state in the energy field. The author shows that because the actual level of protection is ultimately measured by how the contract is interpreted and by the outcome of a dispute, the ‘state contract’ concept has become obsolete. Drawing on recent historical and contemporary sources – primarily an empirical analysis of 501 energy contracts concluded between 1990 and 2020 between States and private parties – the book approaches the topic in the following sequence: the notion of ‘state contract’ and its theoretical background; the frequency of use of the concept in energy contracts and the circumstances under which these contracts tend to be concluded; and the interpretation of the concept by arbitrators trained in different legal traditions and applying different laws. The contracts are examined via their regional, economic, and political characteristics – revealing notably distinctive interpretations among the Middle East and North Africa (MENA) region, the Latin American States, and the countries of the former Soviet Union – as well as according to each private party’s characteristics and the legal tradition relied upon in the arbitrations that ensue. Despite today’s much-desired ‘energy transition’, there is little doubt that the continuing use of conventional energy sources in the mid-term future means that energy companies will keep looking for new oil and gas deposits. For this reason, this systematic and informative study will serve as a practical guide for energy contract drafters, in-house counsel, arbitrators, government officials, and other professionals concerned with energy-related disputes arising between states and private parties.