The pursuit of stability in international energy investment contracts: A critical appraisal of the emerging trends

International energy contracts, like any other long-term international investment contracts, between a foreign investor and the host State are often exposed to various political and economic risks, especially in developing countries. The recent events of governmental interference with international energy operations in some Latin American countries, viz, Venezuela, Bolivia and Ecuador, and elsewhere in the face of ever-increasing energy prices are reminiscent of the 1970s events of nationalization and expropriation of investments of International Oil Companies (IOCs) in many host countries. To address this concern to protect foreign investment, various stabilization techniques and mechanisms have been developed and adopted in related legal instruments such as international investment contracts, international investment treaties and also in national legislation. Besides, special stability regimes have also been introduced in some developing countries to attract foreign investment. The purpose of this paper is to examine the emerging trends of stabilization in view of the current state of international law in the field. The theme of the paper is approached from three broad perspectives. First, a brief review of the classic stabilization techniques will be offered, followed by an appraisal of the modern ones (which are yet to attract serious scholarly attention and arbitral scrutiny) in international energy contracts with special reference to the emerging innovative pursuit of stability in the cross-border pipeline industry. Although the focus of the present paper is on the energy industry, the discussion will also be relevant to the broader area of international investment. Second, the functional value of stabilization techniques will be examined in light of the arbitral jurisprudence and juristic views. Third, the emerging conceptual perimeter of the normative standards of treaty stabilization of foreign investors’ contractual rights will be critically explored. And, finally some concluding remarks will be made.