Editorial

We are pleased to publish the 10-year special issue of OGEL. The intention of this Editorial is not to dwell on the success of OGEL (though this would be easy to do) or to go through the many excellent papers that the Editorial Board of OGEL and other contributing authors have produced for this special issue.

Instead, it will recap the rationale for OGEL and talk about the progress in internationalisation of energy law over the last decades.

Thomas W. Wälde, the founding editor of OGEL, wrote in his first editorial:

"Oil-gas-energy law (OGEL) has over the last decade transcended national borders. With privatisation, restructuring, the emergence of competitive markets, cross-border energy trade and regional integration, legal instruments from one jurisdiction (countries; international organisations; professional and industry associations; civil society forums, internal corporate codes) have a bearing on others - they provide a model, a legal precedent, a directive, standard or guideline for further regulatory implementation." ...

Much has changed in ten years but the trend identified by Thomas W. Wälde in his first editorial still continues to develop.

Energy markets and energy policies are increasingly international in their nature. Universities teach international energy law in its various forms and sub-disciplines, increasing number of professional and academic journals focus on international or transnational energy law, comparative studies are being written and commissioned, policy decisions are taken only after some degree of comparative work on energy policies of other similar countries and finally, no energy policy decision can be taken in vacuum, due to the internationalisation of energy trade (oil and coal being the "old" examples, but now also LNG, pipeline gas and electricity) the choices made in one country will impact the next.

International energy law is in motion. More generally speaking, international law is in motion. Over the last decades, international law has developed and expanded from rules on armed conflict or formal diplomacy, to deal with a wide range of areas and topics. Some call this development "fragmentation" of international law, others, like Thomas W. Wälde, call it "specialisation." The choice depends, among others, how one views this development, positive or negative. Many of these specialised areas of international law have a direct linkage with energy.

Such areas would include human rights law, environmental law, maritime law, international trade law, international investment law and, perhaps, international energy law. This Editorial will look at two different examples of internationalisation of energy law: Lex Petrolea and EU energy law.

Lex Petrolea

Having been raised in Kuwait v. Aminoil[1], the idea of customary rules valid for the oil industry ? a Lex Petrolea, has been discussed and debated by the industry over the subsequent years.[2] In Kuwait v. Aminoil, Kuwait suggested, in connection to valuation of damages, that through the nationalizations of oil concessions that took place in the Middle East in the 1970s and the cases that followed, a specific method of valuation (net book value) had acquired 'an international and customary character, specific to the oil industry', generating a customary rule valid for the oil industry - Lex Petrolea.

While the Tribunal did not agree with Kuwait and noted that these cases had not created an expression of the opinio juris, the subsequent discussion has accepted the existence of this specific regime, Lex Petrolea, which has developed through international and national dispute settlement in the energy sector and through governments' petroleum legislation and specific Host Government Contracts, and the petroleum industry's business practices visible in the its model contracts.

As put by one of the leading authors and practitioners in the area:

Lex Petrolea covers a wide area of international law, given the size and significance of the industry. It can be viewed as either the application of international law to the petroleum sector or as a specific legal regime that has evolved to meet the particular needs of the international oil and gas sector. It probably can be viewed as a bit of both. The growing development of Lex Petrolea in areas such as disputes about boundaries, human rights and environmental claims is more akin to the former, i.e., the application of international law to the petroleum sector. Whereas the areas of international commercial disputes and state investment disputes are more the latter ,i.e., a customary law of the international petroleum sector that has been adapted to the industry's nature and specificities. No matter what the view adopted, Lex Petrolea is clearly a law that has impacted a great deal of international public and private law as we know it today.

Clearly, there are common practises and similar or sometimes uniform rules applying to the energy sector regardless of the geographical location. Whether this causes for Lex Petrolea to emerge depends essentially on how one defines Lex Petrolea. Regardless of this question of categorisation, it is not difficult to agree with the previous commentators in noting that there are certain international best practises that are visible in the practises of the energy sector.

This is the case for both contracts among the international oil companies (JOA's and other private law contracts) and host government contracts, thought the process of internationalisation is different in these two categories. Similarly, there are certain approaches in the international dispute resolution relating to the energy industry that have been adopted internationally. International nature of this area of energy law is apparent.

EU Energy Law

EU energy law has over the last 20 years grown exponentially. The EU issued Directives on particular energy matters already before that, but they were of minor significance, addressed specific situations and had little effect. The sequence of internal market Directives and accompanying Regulations started with relatively innocuous issues (transparency and cross-border transit) and then moved on with core issues of discriminatory practices hindering the internal market (utilities' procurement and upstream licensing Directives). Then appeared the first proper energy market Directives, the electricity market Directive in 1996, followed by the gas market Directive in 1998. These two legislative instruments have then been followed by two more energy law packages from 2003 and 2009 and a range of security of supply Directives and Regulations and green energy packages (emission trading, renewable energy, carbon capture and storage, energy savings and so on).

The geographical reach of these EU instruments have grown with an equally impressive pace (though the actual application of these legal instruments at the national level often leaves much to be desired). With the fall of the Berlin wall and subsequent developments, the EU has grown to include 27 Member States all implementing the EU energy acquis. And there is more: In addition to the EU, also the countries of the EEA agreement apply most of the EU energy law. The EU is also actively exporting its energy laws and policies. This happens both formally and informally: Countries of the Energy Charter Treaty commit to certain principles that in many ways reflect the early days of EU energy law. The next step has been the Energy Community Treaty where the Member States of the Energy Community Treaty have an obligation to implement large parts of the EU energy acquis. Informally, the EU has in the past used various technical assistance programs like Tacis, Phare, Synergy, Altener, Save or Inogate. They are intended to help the recipients to get expertise they do not have and cannot pay for themselves. However, they are also a way to influence the partner countries' energy policies in the EU direction.

In addition to being an example of a region with international energy regulation being adopted by the Member States and supranational institutions being given the power to interpret and enforce these common legal instruments, the EU also actively exports its energy acquis and therefore enlarges the area where this body of law is applied. But EU is not only an exporter of energy law and policy, it is also influenced by international trends in this area. The obvious examples include the international climate change instruments which EU adopts and further develops, then exporting the end-result taking the development in this area further again.

Some final thoughts

As a journal of international energy law, OGEL contributes to the trend of internationalisation of energy law. It provides easy access - easy to understand comparative information on most areas of energy law (from upstream, to transport and downstream and to power generation and energy savings). It is used by students in law schools with specialisation in energy law and policy, in addition to most large international energy companies, its readership includes many of the most influential international organisations in this area. This, together with its contributing authors which cover most of the topics and geographical areas relevant to energy law and policy, makes OGEL one of the sources from which well-informed internationalisation of energy law and policy can proceed.

We would like to thank our Editorial Board for their valuable contributions over the years. We would also like to thank our Contributing Authors for the insights and efforts over the first ten years!

Dr Kim Talus
Editor-in-Chief for OGEL (www.ogel.org)
Lecturer in International Energy and Resources Law
UCL School of Energy and Resources, Australia
University College London