Both pecuniary (i.e., economic compensation) and non-pecuniary (i.e., orders for specific performance) remedies are available to arbitral tribunals instituted under Article 26 of the Energy Charter Treaty (ECT). However, the award has to expressly provide for the Contracting Party to opt to pay monetary damages in lieu of non-pecuniary remedies in cases of Treaty breaches related to acts of sub-national governments or authorities. The provision on both non-pecuniary and pecuniary remedies is coherently accompanied by a specific provision concerning the implementation of awards rendered pursuant to the ECT. Article 26(8) of the ECT in its last sentence imposes upon the respondent Contracting Party not only an obligation to enforce pecuniary obligations under an award (as Article 54(1) of the ICSID Convention establishes) but also an obligation to make specific provision to the purpose in relation to any award (independent of whether the remedy granted is pecuniary or non-pecuniary). The provision, therefore, secures the effective implementation of ECT awards, especially when specific performance is awarded against respondent Contracting Parties.
This Occasional Paper looks at the specific regime set up by the ECT in comparison with general international law, taking into account the travaux préparatoires and the two cases under the ECT in which specific performance has been discussed (Mohamad Ammar Al-Bahloul vs. Republic of Tajikistan and Nykomb Synergetics Technology Holding AB vs. Latvia).