Settlement of Investment Disputes under the Energy Charter Treaty

Abstract

The Energy Charter Treaty has come of age, with almost 50 States parties and a small but growing body of arbitral case law. In this new study of the Treaty's investment protection provisions, Thomas Roe and Matthew Happold set out to identify and explain the Treaty's principal provisions and to suggest answers to some of the difficult problems thrown up by its drafting. They discuss in detail questions such as the standards of protection granted by the Treaty and the international responsibility of States for breaches of the Treaty, the various procedures available for the vindication of rights under the Treaty and the conditions to be satisfied before a claimant's complaint may be considered on the merits. Specific issues addressed include the impact of EU law on claims under the Treaty and the Treaty's provisions concerning taxation.

Promotion, protection and treatment of investments1

“…181 Furthermore, it has been argued that Article 22(3) would confirm the law of state responsibility. 182 Nonetheless, Article 22(3) sets out primary obligations, 183 and, therefore, has no direct bearing on matters of state responsibility, including attribution. 184 In spite of the above interactions, the obligations under Articles 22 and 23 remain external to Part III.…”

“…Article 10(2) provides for an obligation to 'endeavour to accord' to Investors treatment as described in Article 10(3) and with regard to the 'Making of Investments' in the Area of a Contracting Party. 543 While the enforceability of rights under Article 10(2) through investor-state arbitration under Article 26 is debated, 544 other mechanisms which may induce compliance with Article 10(2) are in place under the ECT. For instance, Contracting Parties' measures not in conformity with Article 10(2) obligations are recorded in a register regularly reviewed by the 'Investment Group', a subsidiary organ of the Energy Charter Conference.…”

“…607 Article 10(9) sets out an obligation to submit a report (Report). The Report, to be submitted to the Secretariat, is to summarise all laws, regulations and other measures relevant to exceptions to Article 10(2) (under Article 10(9)(a)) 608 and Article 10(8) programmes (under Article 10(9)(b)). With regard to Article 10(9)(a), the Report may designate parts of the energy sector in which Investors are accorded Article 10(3) treatment.…”

It's something unpredictable but who shall set it right? Change in law in RES support schemes and investment protection instruments under EU law and the ECT

“…In this sense, the protection of foreign investors can be referred to as a matter of conflict with the ECT due to the entry into force of the Lisbon Treaty [16]. The ECT is a multilateral investment treaty (MIT) that fell within the competences of the EU member states as a mixed agreement.…”