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That leaves potential conflicts between regulators and arbitrators. This deference includes interpretation of the regulators’ home statute. Similarly, in both countries, courts grant deference to regulators, particularly regulators involved in regulating complex industries with substantial national importance. In the United States and Canada, the courts grant deference to arbitrators. There can be conflicts in jurisdiction and parallel proceedings. Often disputes involving regulated utilities present special problems for arbitrators. Many of those contracts have arbitration provisions. The utility business also involves thousands of contracts with third parties for the construction and operation of generating facilities, pipeline and transmission assets, as well as the sale of electricity and gas. In addition there are regulatory rules preventing market manipulation. That regulation includes the rates charged to customers, the quality of service and investment in new assets. All are regulated, regardless of ownership. These public utilities can be privately owned or government-owned. Within North America, that commission can be provincial, state or federal. Public utilities are regulated by the government, usually by an independent regulatory commission. Those three classes of parties – generators, transmitters and distributors – are all public utilities.

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Each generator needs a transmitter to transmit that electricity to various markets, and within those markets, other companies distribute the electricity to the end user. These generation facilities exist throughout the world. This is a world that concerns the generation of electricity that moves constantly across state, provincial and international boundaries. They are often cross-border, involving US or Canadian companies and foreign suppliers of technology. These are arbitrations between companies – commercial arbitrations but not necessarily domestic arbitrations.

More than 90 energy companies have head offices in Calgary – and Houston has three times that number. Here, the centre of gravity is not London, Stockholm or Paris, but Houston or Calgary. However, for every one of the investor-state cases, there are 10 significant commercial arbitrations in the downstream energy sector.

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Investor-state arbitrations are the product of the rapid growth of treaties designed to protect the interests of investors – multilateral treaties such as the Energy Charter Treaty and approved by the North American Free Trade Agreement (NAFTA) – but also a wide array of bilateral treaties between specific countries. The attention the segment receives is not surprising. This is the world of investor-state arbitration. This sector is dominated by governments that control the rights to the assets in the ground, and the multinational oil companies that extract the oil and move it to market. Most of the writing about energy arbitration relates to the upstream, as that is where the exploration and development takes place. The oil and gas industry can be divided into two main segments: upstream and downstream.