Dispute Resolution in the Energy Sector: Wither Thou Goest?

Abstract

This article examines developments in international commercial arbitration and investment treaty arbitration relevant to the energy sector in Canada and the United States and discusses their advantages and disadvantages. Jurisdictions in Canada and the US have taken a wide variety of approaches to legislative schemes and their interpretation. This has created uncertainty respecting the involvement of the courts in cross-border disputes where the parties have agreed to an arbitration clause. Further, the Canada-United States-Mexico Agreement has eliminated investment treaty arbitration between Canada and the US which existed in the North American Free Trade Agreement, limiting the options of investors to pursue investment treaty claims. These developments may clarify how energy sector participants should strategically manage their contractual arrangements and arbitration clauses and approach disputes.