에너지헌장조약(ECT)의 잠정적용과 국제투자협정중재에의 동의: 헤이그 법원의 Yukos 중재판정 취소판결을 중심으로

On April 20th 2016, The Hague District Court rendered a set-aside judgment of the investment treaty arbitral awards between Yukos Universal Limited, Hulley Enterprises, Veteran Petroleum Limited—shareholders of Yukos Oil Corporation OJSC—and the Russian Federation. The main reason of the set-aside was that Article 26 of the Energy Charter Treaty, which provides the basis of consent for investment treaty arbitration, cannot be provisionally applied vis-a-vis Russia. The Russian Federation had signed the Energy Charter Treaty on December 17th 1994, but had not ratified it until it eventually notified Portugal, the Depository State of the treaty, that Russia no longer intended to maintain a Signatory status to the Energy Charter Treaty. Thus, the Energy Charter Treaty had never formally entered into force in Russia. The key issue is whether Article 26 of the Energy Charter Treaty can be interpreted as to provisionally apply when Russia has signed, but has not ratified the treaty in question. The Hague District Court—unlike the Arbitral Tribunal in the Yukos Arbitration—was of the view that the ‘Piecemeal approach’ could be taken with respect to the Energy Charter Treaty, and that because the provisional application of Energy Charter Treaty Article 26 is incompatible with Russian domestic law, the provision cannot be provisionally applied in accordance with Article 45(1) of the Energy Charter Treaty; hence, the arbitral award must be set-aside since there is no valid consent to arbitration. This article will provide a critical analysis of The Hague District Court’s set-aside judgment of the Yukos arbitral award, and raises several questions of the Court’s rationale based on the following observations. The Piecemeal approach taken by the Court is compatible with the literal interpretation of the Energy Charter Treaty and discussions on the provisional application of treaties. On the issue of compatibility between Article 26 of the Energy Charter Treaty and Russian domestic law, questions can be raised as to (1) the categorization of investor-State disputes as public law disputes under domestic law; and (2) the broad range of ‘domestic law’ as interpreted and applied by the Court. As the implications of the Yukos set-aside judgment is expected to affect not only the pending enforcement proceedings of Yukos arbitral awards worldwide, but also subsequent investment dispute settlement cases under the Energy Charter Treaty, it is yet to be seen whether the appellate courts will put forth a decision properly addressing the tension between the provisional application of treaties and the ratification procedures under domestic law, as well as restoring the balance between the investor and the State.