The Arbitration Option in Article 26 of the Energy Charter Treaty and its Applicability to Disputes with the Russian Federation

Some twenty years ago now, Martha was working as an expert lawyer on energy
law in my then law firm Trenité Van Doorne. As the leader in fact of that firm’s
energy group, Martha had invited a gentleman of the secretariat of the Energy
Charter Conference for the purpose of enlightening us about the Energy Charter
Treaty (ECT). When we were told that the ECT at the time was only provisionally
applicable, my mind drifted away from the subject and towards the concept of
provisional application, a concept I vaguely remembered from the time I studied
international law. I am afraid I lost track of the speaker’s discourse, and the issue of
provisional application slowly disappeared behind the horizon. It was not before
20 April 2016 (the date when the arbitral awards in the Yukos case were set
aside by the District Court of The Hague) that my attention was again focused
at the relevance and importance of the concept of provisional application. This
chapter is the fruit of some thoughts on that concept, the seed of which was
planted by professor Martha Roggenkamp.