ABSTRACT
The article’s introduction mentiones the growing significance of the energy industry in light of the globalizing economy and the disputes this has led to. In the second part, arbitration, which is one of the most commonly used methods in the resolution of disputes that constitute the subject of this article, is analysed both nationally and internationally. In the relevant section, sources and legislation on arbitration have been utilised. In this context, the Code of Civil Procedure No. 6100 (“CCP”) and the International Arbitration Law No. 4686 (“IAL”) are examined in the national context, and institutions such as the Istanbul Arbitration Centre (“ISTAC”) and the Energy Disputes Arbitration Centre (“EDAC”) are discussed. In international practice, the provisions of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID”) and the UNCITRAL Model Law on International Commercial Arbitration (“UNCITRAL”) are mentioned. In the third part, the scope of the Energy Charter Treaty (“ECT” or “Treaty”), which is a multilateral treaty aiming to ensure international energy co-operation and to which Türkiye is a party, and the types of energy disputes are explained. It is concluded that the Treaty, which mainly includes regulations on environment, competition, trade, transit and investments in the energy sector, aims to protect investment and investors in its broadest scope. Finally, the arbitration proceedings to which Türkiye is a party have been analysed and it is foreseen that in parallel with the increase in investments in the energy sector in our country, arbitration practices in the resolution of energy disputes in Turkish law will increase.
I. INTRODUCTION
Today, the energy sector is one of the sectors in which the investment capacity is expanding both for the states and the private sector with the rapidly developing and globalising economy. As an inevitable consequence of these global developments, various disputes arise in the energy sector. In this respect, arbitration has become a widely preferred method for resolving energy disputes due to its many advantages.
In this article, it will be analysed in which situations and how arbitration law, which plays an active role in the resolution of disputes, is applied in disputes that may arise in the energy sector. Firstly, the concept of arbitration will be explained in the national and international framework. Afterwards, the scope and rules of the ECT the kinds of conflicts in this direction, and the EDAC, which is already outlined in our law, will all be discussed prior to the disputes between the governments and private parties in the energy sector being settled by arbitration. In the last chapter, the judgements rendered in arbitration proceedings to which Türkiye is a party in the light of these regulations will be analysed.
II. ARBITRATION
The resolution of private law disputes that have arisen or may arise, on which the parties may freely decide, by means of arbitrators instead of courts, and through judicial activity, the terms of which are pre-decided, can be defined as an arbitration institution, a dispute resolution method developed as an alternative to state jurisdiction1. Many advantages such as quicker and more predictable proceedings, the ability of the parties to determine the terms of the proceedings and arbitrators within certain limits, and the ability to ensure confidentiality upon request have led to the gradual expansion of the application of arbitration as a dispute resolution method both internationally and nationally2. There are two main requirements for a dispute to be resolved by arbitration; these are that the dispute is arbitrable and that the parties have agreed on this issue3.
Arbitration is divided into national and international arbitration according to the law and seat of the arbitration; compulsory and voluntary arbitration according to whether the arbitration procedure is mandatory; and ad hoc and institutional arbitration according to whether it is within the scope of institutional activity4. In national law, arbitration is regulated under Articles 516 et seq. of the CCP, while international arbitration is a superior term that includes the resolution of disputes with a foreign element by arbitrators according to the Law No. 4686.
A. International Arbitration
Along with the development of trade in the international field, the number of international commercial disputes is gradually increasing. Since there is no international court in charge of the settlement of international disputes, the parties to the dispute may apply to the state judiciary or alternative dispute resolution methods5. However, in international trade practice, especially in disputes where one of the parties is a state, no party will prefer to be tried in the national courts of the other party6. Therefore, the binding effect, enforceability, impartiality, independence, freedom of will, confidentiality of arbitration; It is seen as a dispute resolution method in which legal risks are minimized thanks to its features such as being resolved by experts and faster results compared to courts7. Another advantage of international commercial arbitration is that the enforcement of arbitral awards is easier than court judgements8. Following the adoption of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards dated 1958 (“New York Convention”), which is the first and most important step in the development of international commercial relations, arbitral awards have become enforceable in all contracting states, including Türkiye9. The European (Geneva) Convention on International Commercial Arbitration dated 21 April 1961 (“European Convention”) is another important regulation in this field. Whereas the New York Convention contains general provisions on recognition and enforcement, the European Convention regulates the arbitration phases prior to recognition and enforcement10.
The international character of the dispute subject to arbitration is determined by considering the foreign element; if the dispute has a foreign element, it will be subject to international arbitration11. As stated in Article 1(2) of the IAL, the scope of application of this law is defined as “disputes that have a foreign element and the place of arbitration is determined as Türkiye or the provisions of this Law are chosen by the parties or the arbitrator or arbitral tribunal”12. The conditions under which the dispute will have a foreign element in arbitration are listed in Article 2 of the Act, and if one of these conditions exists and the place of arbitration is agreed upon as Türkiye, the arbitration becomes international.
B. Domestic Arbitration
In recent history, Türkiye, which adopted a liberal economic approach and supported foreign trade, became a party to international conventions on international arbitration towards the end of the 1980s13. The aforementioned New York Convention and the European Convention are among these conventions. In addition, ICSID is one of the conventions transposed into our domestic law and ICSID entered into force in 1988 and the other two conventions entered into force in 199114. International conventions to which Türkiye is a party shall be applied primarily as lex specialis since they regulate international arbitration and enforcement of arbitral awards15. Act No. 5718 on Private International Law and Procedural Law (“IPPL”) also determines the conflict of laws rules that determine the applicable law to foreign relations and the scope of application of international conventions16. In Article 1 of the IPPL, it is stated that “The provisions of international conventions to which the Republic of Turkey is a party are reserved.”17 emphasises that if there is an international convention on the same subject, it shall be applied in priority18.
The scope of application of arbitration under Turkish law is regulated under Articles 407 and following of the CCP. Accordingly, the provisions of the CCP shall apply to disputes that do not involve a foreign element as defined by the IAL and where the place of arbitration is determined as Türkiye in the agreement to be drafted by the parties19. Chapter 11 of the CCP, which entered into force on 1 October 2011, is based on the IAL and UNCITRAL regulations, and attempts have been made to provide an international framework in Turkish law in terms of both domestic and cross-border arbitration20. In addition to these regulations, in order to provide a legal framework for institutional arbitration, ISTAC was established with the aim of establishing an international arbitration institution with the Istanbul Arbitration Centre Act No. 6570 published in the Official Gazette dated 29.11.2014 and commenced its operations on 26 October 2015 with the entry into force of the Arbitration and Mediation Rules21. Due to the final and binding nature of ISTAC arbitral awards, arbitration has become a frequently agreed dispute resolution method in contracts22. Firstly, ISTAC, which was established with the aim of making Istanbul both an international arbitration centre and a world financial centre, can be expected to become one of the most preferred dispute resolution institutions of Türkiye in both national and international arbitration in the near future23.
III. RESOLUTION OF ENERGY DISPUTES BY ARBITRATION
A. Energy Disputes in General
Energy law consists of the regulation of legal relations between individuals, states and legal entities arising from the utilisation of an energy resource24. The difference between international energy investments and international trade is that instead of the legal relationship between the parties ending with the fulfilment of the obligations of both parties, a long-term relationship is established between the foreign investor and the host state25. In this respect, the energy sector constitutes a unique structure. Although oil has become increasingly significant in the energy sector as a global investment instrument in industrialising and industrialised countries, the demand for natural gas investments has increased with the increasing use of natural gas in power generation26. According to the Electricity Generation Corporation (“EÜAŞ”) Electricity Generation Sector Report: “The growth rates in the energy sector, which is among the basic inputs of the industry, are quite high compared to developed countries. Türkiye ranks second after China in terms of electricity and natural gas consumption growth rates”27. At the same time, due to its geopolitical position, Türkiye has become an important regional energy transit centre for oil production and transit to Europe28.
Energy projects are capital-intensive as they are based on long-term relationships, as well as being large-scale investments and requiring high-level technology29. However, due to economic, geological and political factors, the energy sector brings along various legal disputes as conditions, governments and parties change in these long-term projects30. Arbitration has become one of the most widely used methods for resolving these disputes, both internationally and in the domestic law of states. The International Chamber of Commerce, the London Court of International Arbitration and the American Arbitration Centre have surpassed other methods in the international energy market as the three most well-known and used dispute resolution centres with approximately 1,800 arbitration proceedings per year31.
One of the recent amendments regarding dispute resolution in the energy sector in Türkiye is EDAC, which was established on 21 October 2020. The first and only international arbitration centre in the sector, headquartered in Ankara, to resolve corporate energy disputes arising in Central Asia, Europe, the Balkans, the Middle East, the USA and Africa32. Where the parties have agreed in the contract to the Energy Arbitration Rules determined by EDAC, the awards rendered in the proceedings shall be final and binding and shall have international validity in accordance with the New York Convention33.
B. Dispute Settlement under the Energy Charter Treaty
1. Scope of the Energy Charter Treaty
Signed on 17 December 1994 in Lisbon and entered into force on 16 April 1998, the Treaty is an international multilateral agreement that regulates five main issues, namely environment, competition, trade, transit and investment in a broad sense in order to ensure long-term cooperation in the energy sector and aims to provide a dispute settlement mechanism to the party countries, including Türkiye, on these issues34. According to Article 2, the purpose of the Treaty: “establishes a legal framework for the promotion of long-term co-operation in the field of energy, based on the principle of complementarity and mutual benefits”. In this respect, with the intention of minimising non-commercial risks in the energy sector, the ECT aims to provide a level playing field for the market environment for energy investments by reducing political risks, which is one of the most important risks associated with investments between the Contracting Parties35. In this aspect, it can be said that the most important feature of the ECT, besides its regulations on commercial relations in the energy market, is the principle of investor protection.
The fifth chapter of the Treaty regulates the provisions on dispute settlement and proposes dispute resolution mechanisms to the contracting states concerning five main issues. These are environmental disputes, competition disputes, trade disputes, transit disputes and investment disputes between investors and host states, which will be explained in detail below.
2. Types of Disputes
a. Environmental Disputes
In the event of disputes arising out of the application or interpretation of provisions relating to environmental aspects in the energy sector, the dispute shall be examined by the Energy Charter Conference (“the Conference”) at the request of one or more Contracting Parties, “provided that there is no international agreement applicable to the settlement of the dispute in question”36. Thus, Article 19 of the ECT obliges the parties to the Treaty to exercise due diligence to minimise environmental damage in the energy sector. In addition, the Conference referred to in the article is obliged to act as a consultant and to make the necessary efforts to solve the problem37.
b. Competition Disputes
Article 6 of the ECT regulates the provisions on competition in the energy sector. In this context, the Treaty imposes flexible obligations on the parties to the Treaty to reduce market barriers to competition in the field of economic activity in the energy sector and to enact national laws containing provisions to this regard, to improve competition rules, and to ensure co-operation between Member States with a view to strengthening competition rules38. With reference to Article 27(1) of the ECT, it is stated that diplomatic remedies may be used for the resolution of competition disputes, but not for other matters provided for in the ECT39.
c. Commercial Disputes
Pursuant to Article 29 and Annex D of the ECT, adopting the World Trade Organisation (“WTO”) model, it regulates commercial disputes between Member States where at least one of the parties is not a member of the WTO with respect to trade-related investment measures provisions40. By adopting the WTO model, it is aimed to gradually liberalise international trade with the transition to a non-discriminatory, transparent commercial regime41. According to this method, commercial disputes between Member States would be resolved through negotiations and panels; otherwise, compensation would be paid or obligations would be suspended42.
d. Transit Disputes
Article 7 of the ECT provides for a special conciliation procedure in transit disputes43. The dispute must arise from the transit of energy materials and products between transit States or between their organisations44. According to paragraph 7 of the Article, if the disputing Member States do not adopt a different method of settlement and one of the parties applies, the Secretary-General shall consult with the parties on the dispute and appoint a mediator within thirty days, thereby adopting a quicker method of settlement than arbitration45.
e. Investment Disputes
The provisions on the settlement of investment disputes constitute the most important provisions of the ECT. Paragraph (6) of the first article of the ECT defines the concept of investment as “any asset owned or controlled, directly or indirectly, by an investor”46. Subparagraph (7) of the same Article defines an investor as a natural person who is a permanent resident in the Contracting State in accordance with the laws applicable therein; a firm or organisation organised in accordance with the laws applicable in the Contracting State; or a third natural person, firm or organisation that fulfils these requirements for the Contracting State by making the necessary changes47. As mentioned before, the ECT is regulated by adopting the principle of investor protection. In this context, it’s critical to reduce investment risks, particularly in the energy industry, which is crucial for any nation’s economy and requires significant up-front investment48.
The general provisions of the ECT on investor protection are set out in the third chapter. Article 10 of the ECT sets out basic standards for the protection and promotion of investments, and its subsequent articles regulate issues such as non-discrimination, most favoured nation registration, key personnel, compensation for losses, expropriation, succession of rights, transfers of investments and relations with other agreements49. Following the provisions on investor protection, the ECT regulates the provisions on dispute settlement in Chapter 5 and adopts an innovative and mandatory dispute resolution mechanism, especially given that during the transition period several Treaty parties lacked a well-established and adequate judicial system50. Here, the key point in terms of dispute resolution is the provisions of Articles 26 and 27 of the ECT, which will be analysed in detail in the following section titled “Dispute Resolution by Arbitration”.
3. Dispute Resolution by Arbitration
When the Articles 26 and 27 of the ECT regulating the settlement of disputes are analysed; Article 26 regulates the method of settlement of disputes between the investor and the state party; Article 27 regulates the method of settlement of energy disputes between the parties of the Treaty51. Accordingly, Article 26 provides investors with the right to refer the host state to international arbitration in the event of a breach of the investment provisions of the Treaty, while Article 27 recognises recourse to arbitration in disputes concerning the interpretation and application of the Treaty, except in competition and environmental matters52. However, Article 28 of the ECT imposes certain limitations when applying dispute resolution procedures53. In this context, it shall be explained how to settle disagreements between the parties to the Agreement as well as those between the investor and the state party.
a. Dispute Resolution between the Investor and the State Party
Article 26 of the ECT relates to dispute settlement for the compensation of losses incurred by the investor in relation to the investment made by the investor as a result of the breach by the Contracting State of its obligations towards the investor under Chapter 354. In the event of such a dispute, the parties shall first resort to mutual good faith settlement, and if the good faith settlement request of one of the parties is not concluded within three months, the investor has a number of options for the resolution of the dispute55. Accordingly, in disputes that cannot be settled amicably, if the Contracting State breaches an obligation under Chapter 3, the investor has the right to submit the dispute to a national court or administrative authority, to another tribunal if there is a pre-agreed dispute settlement procedure, or to international arbitration if the parties agree56. This optional right is recognised only for the investor, and the investing State is not entitled to such an option under Article 2657.
Although Article 26(3)(a) of the ECT provides that each party to the treaty shall “unconditionally” consent to the submission of the dispute to international arbitration, Article 26(3) (b) allows States Parties to condition their consent in the event that one of the first two optional rights has been exercised58. There are three possibilities if the investor decides to submit the dispute to arbitration: (i) ICSID arbitration, where the investor’s state or the host state, or both, are not parties to the Treaty, where the dispute will be resolved in accordance with the “ICSID Additional Mechanism Rules for Conciliation and Arbitration”, (ii) UNCITRAL arbitration, where the dispute will be determined by a sole arbitrator or an ad hoc tribunal constituted in accordance with the UNCITRAL arbitration rules, (iii) the Stockholm Chamber of Commerce Arbitration Institute as institutional arbitration59. Energy companies should consider the bilateral agreements made by their countries when making their investments, especially the ECT and ICSID rules for dispute resolution and try to protect their investments and investors in this direction60.
b. Settlement of Disputes between the Parties of the Treaty
It is reasonable to state that the Treaty is a more broad regulation that is not restricted to investment conflicts in the third part since it is based on disputes originating from its interpretation and implementation, unlike disputes between the investor and the party countries61. However, this dispute resolution method cannot be used in disputes related to competition regulated under Article 6 and environmental disputes regulated under Article 1962. The parties to the Treaty shall first endeavour to settle their international disputes by diplomatic means; If the dispute is not resolved through diplomatic channels within a reasonable time, they should only take the dispute to arbitration63. In this regard, upon the written request of one of the parties, the dispute may be resolved by an ad hoc arbitral tribunal consisting of three arbitrators64. If the dispute between the parties cannot be resolved by this method, then the court may apply the arbitration rules of UNCITRAL65.
In conclusion, although the ECT regulates issues such as trade, competition, environment and transit in the energy sector and dispute settlement in these areas, its focus is on investments and investor protection66. The Treaty aims to promote and facilitate international energy cooperation, resolve energy disputes between States Parties and between investors and host States, as well as minimise the harmful effects of production and consumption on the environment by increasing energy efficiency67.
C. Energy Arbitration Cases in which Türkiye is a Party
Despite the fact that arbitration in energy investment agreements is a widely used dispute resolution method in the international arena, energy arbitration seems to be a new term in Türkiye. The first arbitration proceeding in the energy investment sector in Türkiye was PSEG v. Türkiye, which was finalised in 2007. Following these, in the energy sector, Libananco v. Türkiye, Cement v. Türkiye, Europe Cement v. Türkiye and Alapli v. Türkiye, which were concluded in favour of Türkiye, are among the ICSID cases that should be highlighted in this section68. Libananco, originating from Southern Cyprus, brought a claim against Türkiye before the ICSID Centre for the alleged expropriation of two hydroelectric facilities in violation of the ECT; the tribunal ruled that Libananco did not qualify as an investor on the grounds that the claimant, who had the burden of proof, failed to prove the subject matter in dispute69. The arbitral tribunal dismissed the case on procedural grounds as the dispute was not within its jurisdiction. Similar grounds for lack of jurisdiction were cited in the instances of Cementownia and Europe Cement v. Turkey; however, the analyses made here have been wholly focused on the concepts of investment and investor, and in reality, a determination has been established regarding the core of substantive law70. As can be seen, the arbitral tribunal rendered a procedural award, although it made a purely substantive assessment.
In the 1980s, as a result of the increasing demand for electricity in the Republic of Turkey, initiatives were taken to liberalise the energy sector and encourage the participation of foreign investors71. In this context, long-term energy agreements have been signed with foreign investors; one of these agreements was signed in 1994 with the US-based PSEG for the construction of a thermal power plant and the construction of a coal mine near the power plant. The PSEG/ Türkiye arbitration proceedings commenced with an application filed with ICSID on 22 March 2002 following the non-completion of the project72. In its jurisdictional objection, Türkiye, citing Mihaly v. Srilanka, argued that there was no investment; only expenditure on an incomplete project73. At the outcome of the proceedings, the arbitral tribunal held that the public service concession agreement between the parties was legally valid, rejected all of Türkiye’s jurisdictional objections and held that the issue of costs should be dealt with in the decision on the merits of the dispute74. In 1998, Alaplı Elektrik B.V. (“Alaplı”), a Dutch company, signed a public concession contract with the Ministry of Energy and Natural Resources (“Ministry”) for the establishment of a natural gas conversion power plant; however, upon the Ministry’s request to remove the treasury guarantee from their contract and to convert their project into a contract subject to private law, Alaplı filed a lawsuit before ICSID on the grounds of loss75. As a result of the proceedings, ICSID decided in favour of the Republic of Turkey on 16 July 201276.
IV. CONCLUSION
In order for the energy sector to survive in the long term in the face of a globalising economy and increasing capital costs, it is important to determine the resolution methods of private law disputes that may arise. Energy disputes are expected to reduce economic efficiency when they are not effectively intervened. At this point, international arbitration has become an important dispute resolution mechanism for both state investments and private investments. Multilateral agreements such as the ECT come into play to resolve disputes arising in this direction. In this context, the ECT arrangements, to which Türkiye is a party, which enable foreign investors to apply to arbitration on disputes such as environmental, competition, trade, transit and investment agreements with host states, are analysed in detail. Thus, this study emphasises the importance of arbitration in the resolution of disputes arising in the energy sector.
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FOOTNOTE
1 Hakan Pekcanıtez/ Ali Yeşilırmak, Pekcanıtez Usul Medeni Usul Hukuku, 15. Edn, İstanbul 2017, p. 2593.
2 Doğan Ağırman, Milli & Milletlerarası Tahkim, 1. Edn, Ankara 2022, p. 80.
3 Ziya Akıncı, Milletlerarası Tahkim, 6. Edn, İstanbul 2021, p. 8.
4 Ağırman, p. 86.
5 Nesli Şen Özçelik, Resmi Yargı ve Tahkimin Ayrı Ayrı ve Birlikte Yetkilendirildiği Tahkim Anlaşmalarının Geçerliliği, MHB, Vol. 36, I. 2, 2016, P. 53-81, p. 55.
6 Akıncı, p. 9.
7 Gülser Banu Uslu, Milletlerarası Tahkim Anlaşmasının Esasına Uygulanacak Hukuk, AndHD, Vol. 7, I. 1, 2021, P. 167-193, p. 168.
8 Akıncı, p. 10.
9 Akıncı, p. 10.
10 Ergin Nomer/ Nuray Ekşi, Günseli Öztekin Gelgel Milletlerarası Tahkim Hukuku, Vol. 1, İstanbul 2013, p. 52.
11 Ağırman, p. 87.
12 Act No. 4684, Official Gazette Dated: 3/7/2001 I: 24451, Art. 1(2).
13 Hacı Can/ Ekin Tuna, Milletlerarası Tahkim Hukuku, Ankara 2021, p. 63.
14 Can/ Tuna, p. 64.
15 Akıncı, p. 54.
16 Akıncı, p. 81.
17 Act No. 5718, Official Gazette Dated: 12/12/2007 I: 26728, Art. 1(2).
18 Akıncı, p. 81.
19 Act No. 6100, Official Gazette Dated: 4/2/2011 I: 27836, Art. 407(1).
20 Ağırman, p. 82.
21 Can/ Tuna, p. 99.
22 Can/ Tuna, p. 100.
23 Ağırman, p. 92.
24 Abdullah Sacid Örengül, Uluslararası Enerji Hukuku, Yenilenebilir Enerji ve Şeffaflık (Ali Kerem Kayhan/ Ali Osman Karaoğlu, Uluslararası Hukukta Şeffaflık, 1. Edn, İstanbul 2021), p. 223-
224.
25 Bağdagül Kaya Caner, Enerji Yatırımlarından Doğan Uyuşmazlıklarda Uluslararası Tahkim, Doctoral Thesis, Ankara 2021, p. 19.
26 Timothy Martin, Uluslararası Enerji Sektöründe Uyuşmazlık Çözüm Yöntemleri: Genel Bir Değerlendirme, (translation: Hüseyin Amiklioğlu), ÇÜHFD, Vol: 5, I. 1, 2020, P. 3981-4014, p. 3982.
27 EÜAŞ, Electricity Generation Sector Report 2009, p. 8.
28 Elif Işıl Kılıçarslan, Enerji Sektöründe Yabancı Yatırım Uyuşmazlıkları ve Uluslararası Tahkim, Master’s Thesis, Mersin 2012, p. 10-11.
29 Bünyamin Kartal, Enerji Şartları Anlaşması Çerçevesinde Uyuşmazlıkların Çözümü ve Stockholm Ticaret Odası Tahkimi (Stockholm), 1. Edn, İstanbul 2020, p. 37.
30 Martin, p. 3982.
31 Martin, p. 3987.
32 Energy Disputes Arbitration Center (EDAC), https://arbitrationcenter.org/ kurumsal/?lang=tr (Date Accessed, 24.10.2022).
33 Energy Arbitration Rules, Art. 1; Energy Disputes Arbitration Center (EDAC), https://arbitrationcenter.org/ kurumsal/?lang=tr (Date Accessed, 24.10.2022).
34 Bünyamin Kartal, Enerji Şartı Anlaşmasına İlişkin Taleplerde Yargılama Problemleri, Enerji Hukuku Dergisi, Vol. 5, I. 1, 2016, p. 47-68, 50.
35 Sedat Çal, Uluslararası Yatırım Tahkimi ve Kamu Hukuku İlişkisi, Ankara 2009, p. 103.
36 Energy Charter Treaty, Art. 19(2).
37 Ali Kemal Kılavuz, Enerji Şartı Anlaşması Çerçevesinde Uyuşmazlıkların Çözümü, Gazi Üniversitesi Hukuk Fakültesi Dergisi Vol. XIII, P. 1-2, 2009, p. 190.
38 Kılıçarslan, p. 34; Energy Charter Treaty, Art. 6.
39 Kılavuz, p. 189.
40 Pınar Baklacı/ Esen Akıntürk, Enerji Şartı Antlaşması, Dokuz Eylül Üniversitesi İşletme Fakültesi Dergisi, Vol. 7, P. 2, 2006, p. 107.
41 Kılavuz, p. 187.
42 Kılavuz, p. 187.
43 Baklacı/ Akıntürk, p. 107.
44 Baklacı/ Akıntürk, p. 107; Kılıçarslan, p. 34.
45 Kılavuz, p. 188.
46 Energy Charter Treaty, Art. 1(6).
47 Kılavuz, p. 188; Energy Charter Treaty, Art. 1(7).
48 Kılavuz, p. 192.
49 Kılavuz, p. 193-197.
50 Kılavuz, p. 197.
51 Kılıçarslan, p. 37.
52 Baklacı/ Akıntürk, p. 107; Energy Charter Treaty, Art. 26-27.
53 Baklacı/ Akıntürk, p. 108; Energy Charter Treaty, Art. 28.
54 Esen Akıntürk, Enerji Şartı Antlaşması ve Yatırımların Korunmasına İlişkin Esaslar, Uluslararası Hukuk ve Politika Dergisi, Vol. 7, I. 27, 2011, p. 55.
55 Kılavuz, p. 198.
56 Baklacı/ Akıntürk, p. 109; Kılıçarslan, p. 37.
57 Kılavuz, p. 198.
58 Baklacı/ Akıntürk, p. 109; Energy Charter Treaty, Art 26(3).
59 Baklacı/ Akıntürk, p. 110; Kılıçarslan, p. 37-38; Kılavuz, p. 200.
60 Martin, p. 3984.
61 Kartal, Stockholm, p. 44.
62 Kılavuz, p. 198.
63 Baklacı/ Akıntürk, p. 110.
64 Kılavuz, p. 204.
65 Kılıçarslan, p. 39.
66 Kılavuz, p. 211.
67 Baklacı/ Akıntürk, p. 112.
68 Kılıçarslan, p. 16.
69 Libananco Holdings Co. Limited v. Republic of Turkey, ICSID Case No. ARB/06/8.
70 Kartal, p. 62-63.
71 Kılıçarslan, p. 103.
72 PSEG Global Inc. And Konya Ilgin Elektrik Üretim ve Ticaret Limited Sirketi v. Republic of Turkey, ICSID Case No. ARB/02/5.
73 Caner, p. 150.
74 Caner, p. 151.
75 Kılıçarslan, p. 109.
76 Alaplı Elektrik B.V. v. Republic of Turkey, ICSID Case No. ARB/08/13.
