Dispute Trends in the Energy Sector

By on December 21, 2018

Executive Summary of an article written by
Neil Miller, Norton Rose Fulbright

Energy sector disputes dominate international arbitration both in number and value, with the highest value arbitral awards in history arising from energy-related arbitration. Joint venture agreements are very prevalent, and the economic impact of low oil prices has hit participants in production-sharing agreements and joint operating agreements hard, resulting in defaults, budget disputes and royalty disputes.

Political regime change has resulted in significant cross-border gas supply disputes and international arbitrations. There have been record high numbers of investor-state disputes. Even where states have terminated bilateral investment treaties, sunset clauses will mean the continuation of claims for years. Energy corporations are facing increased scrutiny of their environmental impact and potential disputes in relation to their contribution to climate change. As a body of climate change case law continues to grow, so too does the risk posed to corporations active in the energy sector, where environmental impact is inevitable. The availability of claimant funding will be a key aspect of this.

A multiplicity of new rules, seats and institutions, as well as the revamping of rules between now competitive institutions to attract arbitral business worldwide, brings with it uncertainty that did not previously exist within the tighter arbitral fraternity. In the energy sector, an uncertain political landscape — combined with cross-border investment in energy projects and fluctuating prices — creates the model ecosystem for a whole spectrum of energy disputes to emerge globally, with arbitration remaining a key method of dispute resolution.

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