THE ENERGY CHARTER TREATY
A READER’S GUIDE
Energy Charter Secretariat
THE ENERGY CHARTER TREATY
A READER’S GUIDE
1
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TABLE OF CONTENTS
PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 06
A. The Energy Charter Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 07
I. The Development towards the ECT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 07
II. The Main Elements of the ECT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 09
III. The Role of the ECT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 09
IV. Institutional Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
B. Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
II. The Main Principles of the ECT Trade Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
III. Amendment to the Trade-Related Provisions of the ECT . . . . . . . . . . . . . . . . . . . . . 14
1. Applicability of most of the substantive provisions of the WTO
Multilateral Agreements on Trade in Goods (Annex 1A to the WTO
Agreements) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2. Extension of the WTO-based trade regime to Energy Related
Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3. Possible future legally binding tariff commitments for Energy
Materials, Products, and Energy-Related Equipment . . . . . . . . . . . . . . . . . . . . . . 16
IV. Trade-Related Investment Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
V. Trade in Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
VI. The Role of the ECT Secretariat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
C. Investment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
II. Overview of the ECT’s Investment Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
1. Definition of “Investment” and related Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
a. Investment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
b. Economic Activity in the Energy Sector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
c. Energy Materials and Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2. General Treatment of Foreign Investors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3. The Principle of Non-Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
a. Treatment of Established Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
b. The Making of Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4. Expropriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5. Compensation for Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6. Transfer of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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7. Individual Investment Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8. Key Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9. Subrogation/Transfer of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10. Relation to other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
11. Non-Application of the Investment Provisions in Certain
Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
III. The ECT Investment Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
D. Transit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
I. Definition of “Transit” and Applicable Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
II. Negotiations on a “Transit Protocol” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
E. Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
I. Competition Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
II. Transfer of Technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
III. Access to Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
IV. Sovereignty over Energy Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
V. Environmental Aspects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
VI. Transparency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
VII. Taxation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
VIII. State and Privileged Enterprises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
IX. Observance by Sub-National Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
X. Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
1. General Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
2. Transitional Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
XI. Economic Integration Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
F. Energy Efficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
I. The Origins of the Concept of Energy Efficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
II. The PEEREA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
III. Implementation of the PEEREA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
1. Developing energy efficiency strategies and legislation as well
as monitoring their implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
2. Encouraging the introduction of market oriented prices,
mechanisms and programmes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
3. Adopting policies that encourage the development of appropriate
regulations and standards, financial measures and incentives . . . . . . . . . . . 47
4. Introducing energy efficient technologies and encouraging
cogeneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
5. Intensifying international co-operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
IV. Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
G. Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
II. Investment Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
1. Investor-to-State Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
a. Prior Consultations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
b. Option between domestic and international dispute settlement . . . . . 53
c. Option between different international arbitration fora . . . . . . . . . . . . . . . 53
d. State consent to international arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
e. Applicable law and finality of awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
f. Enforcement of arbitral awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
2. State-to-State Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
III. Trade Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
IV. Transit Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
V. Competition Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
VI. Environmental Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
H. ECT Institutional Provisions, Charter Instruments and ECT as Part of
International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
I. Institutional Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
1. The Charter Conference and its subsidiary bodies . . . . . . . . . . . . . . . . . . . . . . . . . . 59
2. The Charter Secretariat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
3. The Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
4. Funding Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
II. Additional Charter Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
1. Annexes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
2. Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
3. Understandings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
4. Declarations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
III. The ECT as Part of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
I. Co-operation with Non-Member Countries, Forms of Participation . . . . . . . . . 64
I. The Energy Charter’s Policies vis-à-vis Non-Members . . . . . . . . . . . . . . . . . . . . . . . . 64
1. Mediterranean Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
2. Economic Co-operation Organisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
3. APEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
4. China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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II. Forms of Participation in the Energy Charter Process . . . . . . . . . . . . . . . . . . . . . . . . . . 66
1. Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
2. Observership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
3. Association Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Annex 1: Status of Ratification of the ECT (as of 1 January 2002) . . . . . . . . . . . . . . . . . . . . . 69
Annex 2: Overview of the Annexes to the ECT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Annex 3: Procedural Requirements for Accession to the ECT . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Annex 4: Tasks of the ECT Secretariat in the Trade Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
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PREFACE
This publication contains a commentary to the Energy Charter Treaty (“ECT”) and
related Instruments. Signed in December 1994 and in force since April 1998, the ECT
establishes a multilateral legal framework for cross-border energy co-operation. It
covers energy trade, investment, and transit in a comprehensive manner. It also deals
with the issue of energy efficiency and includes binding dispute resolution proce-
dures.
The ECT aims to encourage and facilitate international energy co-operation. Its key
principles of openness of energy markets and non-discrimination have the potential to
stimulate foreign direct investment and cross-border trade. This will contribute
towards securing energy supply of energy importing countries, and increasing capital
inflows into energy exporting countries. Economies in transition need capital to
develop and upgrade their energy industries.
As of 1 January 2002, the ECT comprises 46 member countries (including the
European Communities). Several other countries have signed the Treaty (without
having yet completed ratification procedures) or have, like various international
organisations, obtained observer status. Given the fact that energy is a global issue, the
Energy Charter process is dynamic and open. ECT member countries seek co-operation
with non-members and encourage them to an active dialogue. The ECT therefore
establishes an important international policy forum for energy-related issues.
The ECT is a complex international agreement. This survey has been written with the
aim to guide interested readers (such as government officials, company representatives,
business associations, trade unions, non-governmental organisations, or
academics) through the Treaty text. It gives an overview of the historic development
of the ECT and its principal objectives, explains the main provisions of the ECT and
related Instruments, describes major recent activities, and deals with institutional
matters. The intention is to contribute to a better understanding of the Treaty and to
raise interest in the Energy Charter process.
The principal officer responsible for the publication is Joachim Karl. Substantive
contributions were made by Tudor Constantinescu, Andras Lakatos, Alan Parfitt and
Karl Petter Waern. Readers seeking additional information are kindly requested to
visit the Energy Charter Secretariat’s website (http://www.encharter.org) or to get in
contact with it. The address is as follows:
Energy Charter Secretariat
Boulevard de la Woluwe 56
1200 Brussels, Belgium
Tel: 0032-2-775 9800
Fax: 0032-2-775 9801
e-mail: info@encharter.org
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A. THE ENERGY CHARTER PROCESS
SUMMARY
• The ECT has its roots in a political declaration on East-West co-operation
in the energy sector (the “European Energy Charter”);
• The ECT is a comprehensive multilateral agreement covering all aspects of
energy co-operation (trade, investment, transit, energy efficiency, dispute
settlement);
• The ECT promotes openness of energy markets and security of energy
supply, while respecting the principles of sustainable development and
sovereignty over natural resources;
• The ECT establishes an international policy forum for the discussion of all
energy-related issues;
• The Energy Charter process is dynamic and open to co-operation with
interested non-members.
I. THE DEVELOPMENT TOWARDS THE ECT
The origins of the Charter Process date back more than one decade when the fall of the
Berlin Wall and the subsequent dissolution of the Soviet Union brought fundamental
change in European and world politics. This change opened new and unprecedented
opportunities for economic co-operation, with the energy sector being a focal point of
this new relationship.
There are several reasons why the energy sector is particularly promising for mutually
beneficial co-operation: First of all, energy is the main driving force of all economies.
Secondly, for many partners with a developing economy, the export and sale of energy
products is, and will be, one of the most important sources of “hard” foreign currency
earnings and a major source of tax revenue. To make full and efficient use of their
energy resources, developing countries and transition economies need to modernise
their existing facilities. This will not be possible without a massive inflow of capital,
technology and know how.
Industrialised countries also have a keen interest in enhanced energy co-operation.
Energy supply from the resource-rich countries helps them to meet increasing energy
7
demands and results in an improved diversification of energy flows, thus reducing
dependency upon one particular region.
A first important step towards the ECT was the European Energy Charter - a political
declaration that was signed in The Hague in December 1991, and to which currently
54 countries adhere. It represents a political commitment to co-operation in the energy
sector, based on the following objectives and principles:
• Development of open and efficient energy markets;
• Creation of conditions that will stimulate the flow of private investments and the
participation of private enterprises;
• Non-discrimination among participants;
• Respect for state sovereignty over natural resources;
• Recognition of the importance of environmentally sound and energy-efficient
policies.
The Energy Charter emphasised the need for the establishment of an appropriate international
legal framework for energy co-operation between participants. Negotiations
on the ECT started in 1992. Negotiating partners consisted of more than 50 delegations
with very different backgrounds, divergent perceptions and interests. There was
no previous experience with negotiations of an agreement of a similar type.
Nevertheless, negotiations could be successfully concluded after a relatively short
period of three years. The ECT was signed in Lisbon on 17 December 1994, and
entered into force on 16 April 1998. As of 1 January 2002, 52 countries (including the
European Communities) have signed the ECT, and 46 states have completed ratification
procedures (see Annex 1).
TABLE: THE ENERGY CHARTER WORLD (AS OF 1 JANUARY 2002)
8
࡯ Energy Charter Treaty Signatory States
࡯ Observer States that have signed the European Energy Charter
࡯ Other Observer States
II. THE MAIN ELEMENTS OF THE ECT
The basic elements of the ECT 1 are the following:
• Investment protection (e.g. by granting investors non-discriminatory treatment –
national treatment and most-favoured nation treatment – compensation in case of
expropriation and other losses, free transfer of capital);
• Trade in energy, energy products and energy related equipment, based on the WTO
rules;
• Freedom of energy transit;
• Improvement of energy efficiency 2;
• International dispute settlement, including investor-state arbitration and inter-state
arbitration;
• Improved legal transparency.
Further to these key elements, the ECT contains commitments on governmental
co-operation, for instance with regard to transfer of technology, opening of financial
markets, and the development of competition rules.
III. THE ROLE OF THE ECT
According to Article 2 of the ECT, the purpose of the Treaty is to establish a legal
framework in order to promote long-term co-operation in the energy field, based on
complementarities and mutual benefits, in accordance with the objectives and principles
of the Energy Charter. It is a milestone in international energy co-operation. By
creating a stable, comprehensive and non-discriminatory legal foundation for crossborder
energy relations, the ECT reduces political risks associated with economic
activities in transition economies. It creates an economic alliance between countries
with different cultural, economic and legal backgrounds, but all united in their
commitment to achieve the following common goals:
• To provide open energy markets, and to secure and diversify energy supply;
• To stimulate cross-border investment and trade in the energy sector;
• To assist countries in economic transition in the development of their energy
strategies and of an appropriate institutional and legal framework for energy, and in
the improvement and modernisation of their energy industries.
9
1
These elements will be discussed in more detail in the following chapters.
2
A specific “Protocol on Energy Efficiency and Related Environmental Aspects” entered into force together
with the Treaty on 16 April 1998.
The attraction of foreign investment to promote energy production in a sustainable
manner, and the development of secure and diversified sources of energy imports, are
pressing issues in many countries. The ECT offers an important mechanism for
addressing these priority tasks through multilateral co-operation:
• Participation in the Energy Charter process is an important factor in promoting the
development of a country’s energy sector. By doing so, governments convey a
strong political message to foreign investors that they are committed to observe the
principles of openness and non-discrimination in the energy market;
• Participation in the Energy Charter process offers reciprocal benefits for countries
developing their own outward investment strategies;
• In many countries a major increase in per capita energy consumption can be
expected over the next decade. This in turn will entail some crucial decisions in
terms of balancing consumption with energy efficiency and environmental concerns,
and in terms of ensuring secure and diversified sources of energy supply to
fuel growth. Participation in the Charter process offers the possibility to develop
satisfactory solutions for these important issues .
The ECT has a pioneer role for treaty-based international energy co-operation. It:
• Is unique in covering all forms of international energy co-operation simultaneously,
i.e. investment, trade, transit and energy efficiency;
• May create an intermediary step towards WTO membership for those ECT countries
that are not yet WTO members;
• Is the first binding multilateral agreement on the promotion and protection of
foreign investment, covering all important investment issues and providing high
standards of protection, including a fully developed dispute settlement mechanism;
• Is the first multilateral treaty on energy transit issues and energy efficiency;
• Establishes a permanent discussion forum between members concerning all
aspects of international energy co-operation.
The ECT confirms the principle of national sovereignty over energy resources (Article
18). Member countries remain free to conduct their national energy policies and
exploit their natural resources, provided that they exercise their sovereign rights in
accordance with their Treaty obligations. For instance, the ECT does not touch upon
issues such as the structure of domestic energy markets in general, the legal structure
of energy companies, or third party access. The Treaty also respects that member
countries take appropriate measures for the protection of national security or other
justified reasons (Article 24).
The Energy Charter process is dynamic and open towards the outside world.
10
Although originally conceived as a European initiative, having its roots in the
European Energy Charter of 1991, the Energy Charter process has long since developed
into a more global forum for energy co-operation. Russia and the five states of
Central Asia (Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, Uzbekistan),
Australia and Japan are all founding signatories to the ECT and are active participants
in the Energy Charter process. They have been joined by Mongolia in 1999.
Given the fact that energy is an issue of global dimension, ECT member countries
attach great importance to co-operation with non-members. There are various forms
of co-operation, reaching from informal contacts, via observership and association to
full membership (see chapter on “Co-operation with Non-Members”, page 64 below).
IV. INSTITUTIONAL ARRANGEMENTS
The Treaty has established the Energy Charter Conference as its main institutional
body. The Conference has the political responsibility for the implementation of the
Energy Charter, the ECT and related instruments. It also decides on possible amendments
to the Treaty and on the admission of new members. The Conference has
created several working groups and ad-hoc committees that operate under its
supervision. In 1996, the Energy Charter Secretariat has been established in Brussels,
Belgium, to serve the Conference and its member states.
11
B. TRADE
SUMMARY
• The ECT extends the WTO rules to trade in the energy sector between WTO
and non-WTO members and to energy trade among non-WTO members
(“WTO by reference” approach);
• The ECT trade rules cover energy materials, products (such as coal, crude
oil, natural gas and electricity), and energy-related equipment;
• The ECT trade rules only cover trade in goods - not trade in services - and
do not extend to trade-related intellectual property rights;
• The ECT has established procedures for the settlement of trade disputes.
I. INTRODUCTION
One of the necessary conditions for forging open and non-discriminatory energy
markets through the Energy Charter process has been to create a stable, predictable
and non-discriminatory regime for energy and energy-related trade between all 52
ECT Contracting Parties (“CPs”)/signatories. Such a framework should naturally
follow and be based on the rules of the multilateral trading system as embodied in the
General Agreement on Tariffs and Trade (“GATT”) - when the ECT was negotiated
between 1991 and 1994 - and now in the World Trade Organisation (“WTO”).
The fact that in the early 1990’s approximately half of the Charter constituency did not
belong to the GATT represented a major challenge during negotiations of the ECT.
A formula for dealing with energy trade between GATT and non-GATT countries and to
energy trade amongst non-GATT countries was found through making the substantive
GATT rules applicable to such transactions (“GATT by reference” - Article 29). As far
as trade between GATT members was concerned, the GATT provisions applied exclusively,
and the ECT did not derogate from these provisions.
Three years after the entry into force of the WTO Agreement, the ECT was amended
in order to take account of the relevant changes in the multilateral trade rules resulting
from the Uruguay Round. The amendment has taken the same approach as the
original Treaty: it incorporated all those WTO rules on trade in goods that are relevant
from a sectoral viewpoint (“WTO by reference”).
12
The ECT therefore has the effect of treating those CPs/signatories 3, which are not
members of the WTO, as if they were WTO members - in the framework of energyrelated
trade. For non-WTO CPs 4 the applicable ECT trade regime is a major step on
the way to stable, predictable and non-discriminatory trade rules and a milestone
towards WTO membership. The ECT trade regime will have fulfilled its purpose once
all member countries have also become members of the WTO.
II. THE MAIN PRINCIPLES OF THE ECT TRADE RULES
The legal structure of the ECT trade regime consists of two instruments: the relevant
provisions of the ECT based on the GATT 1947 rules (in the version of December
1994), and the Amendment to the Trade-Related Provisions of the ECT based on the
relevant WTO rules (adopted in April 1998).
The reasons for this two-tiered approach are:
• Not all trade-related issues could be resolved at the time of signature of the Treaty
in December 1994 (e.g. the coverage of energy-related equipment and the legally
binding regime for customs duties);
• The results of the Uruguay Round negotiations could not be incorporated into the
ECT at the time of its adoption.
Some provisions of the GATT/WTO regime have not been made applicable under the
ECT. This has been achieved by:
• Declaring them non-applicable or modified by Annex G (in the original Treaty) or
Annex W (in the Treaty as amended by the Trade Amendment);
• Making further exceptions in the text to the generally applicable GATT/WTO related
trade provisions of the ECT or in the related instruments of the Final Act.
Examples are:
o Trade between states that were previously part of the former USSR could
instead be governed by pre-existing preferential agreements between them for a
limited time (Article 29 (2b)). This exception ceased to apply on 1 December
1999;
13
3
For the sake of easier reading, the term “CPs” is used instead of “CPs/signatories” throughout the remainder
of the text.
4
These countries are Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Kazakhstan, the former
Yugoslav Republic of Macedonia, the Russian Federation, Tajikistan, Turkmenistan, Ukraine, and
Uzbekistan.
o Nuclear trade between the European Communities and some CIS countries may
be governed by bilateral agreements.
Regarding customs duties on imports, there is at present only a “best-endeavours”
commitment not to increase them (Article 29 (4)). However, any increase of import
duties is subject to a notification obligation and consultation procedure (Article 29
(5)).
In conclusion, the trade provisions of the ECT can be characterised as follows: They
• Cover energy materials and products and energy-related equipment listed in
Annexes EM I and EQ I;
• Cover trade in services partially through the rules on investment, although the
provisions of the WTO-GATS as such have not been incorporated into the ECT;
• Govern energy trade relations between WTO members and non-WTO members
and between non-WTO members;
• Are not a new set of rules as they are based on the WTO agreements.
III. AMENDMENT TO THE TRADE-RELATED PROVISIONS OF THE
ECT
On 24 April 1998, the International Conference of the Parties to the Energy Charter
adopted a new instrument, which amended the Treaty (the so-called “Trade
Amendment”). It replaced the GATT provisions of the ECT with those of the WTO.
The main changes introduced by the Trade Amendment are the following:
1. Applicability of most of the substantive provisions of the WTO
Multilateral Agreements on Trade in Goods (Annex 1A to the WTO
Agreement)
The Trade Amendment follows the same mechanism concerning the applicability of
trade rules as the ECT. Therefore, all rules of the WTO Multilateral Agreements on
Trade in Goods apply, except those listed in Annex W of the Trade Amendment. This
Annex contains two kinds of limitations:
• Annex W(A) lists WTO rules that are not applicable;
• Annex W(B) contains special rules and modifications of the WTO provisions applicable
under the ECT as amended.
14
The following categories of WTO provisions are listed in Annex W(A) as not
applicable:
• Institutional provisions - because the Charter Conference substitutes the WTOrelated
bodies, as provided for in Annex W(B)(9);
• Final provisions, including those on entry into force, accession, and withdrawal because
the ECT contains its own final provisions;
• Dispute settlement provisions - because the ECT provides in Article 29(9) and
Annex D, as amended, for its own dispute settlement mechanism;
• All provisions on tariff bindings and tariff negotiations - because under the ECT
only a “best-endeavours” regime applies to import duties. However, the Charter
Conference is mandated to annually review the possibility of moving items to
Annexes EM II and EQ II, which will specify those products for which bindings
will apply;
• All provisions that grant special and differential treatment to developing countries,
except those that permit treatment under the Generalised System of Preferences
(i.e. preferential tariffs granted to developing countries on a unilateral basis);
• The Agreement on Agriculture, the Agreement on the Application of Sanitary and
Phytosanitary Measures and the Agreement on Textiles and Clothing - because
their content is outside the scope of the ECT;
• The GATS and the WTO Agreement on Trade-Related Intellectual Property Rights.
Under the Trade Amendment, Decisions by the WTO bodies in those areas that are
applicable pursuant to Article 29(2)(a) are incorporated automatically, i.e. no further
action by the Conference is needed to adopt them for the purposes of the ECT.
2. Extension of the WTO-based trade regime to Energy-Related
Equipment
The trade provisions of the ECT originally only applied to trade in energy materials
and products - which includes fossil fuels such as coal, natural gas, petroleum and
petroleum products as well as nuclear energy, electricity, fuel wood and charcoal. The
Trade Amendment extended the ECT trade rules to energy-related equipment. As a
result, the ECT trade regime now covers more than 70 categories of items of energyrelated
equipment, such as pipeline pipes, turbines, power masts, furnaces, platforms,
transformers, etc. (Annex EQ I). The listing of equipment items is based on tariff
headings of the World Customs Organisation’s Harmonised System.
This is a significant enlargement of the scope of the ECT. It ensures that investors will
have access to equipment of their choice on a non-discriminatory basis, both in terms
of most-favoured nation treatment and national treatment.
15
3. Possible future legally binding tariff commitments for Energy
Materials, Products, and Energy-Related Equipment
The ECT does not affect the trade regime between the ECT CPs that are likewise
WTO members. It continues to be governed by their WTO obligations. However, in
trade involving at least one ECT CP that is not a WTO member, the ECT CPs that are
WTO members are under a “soft law” commitment not to increase their tariffs beyond
a “ceiling” of their duty rates bound in the WTO (“best endeavours” clause). ECT CPs
that are not yet WTO members undertook a “soft law” pledge not to raise their import
and export tariffs above the applied levels.
In the negotiations of the Trade Amendment, the CPs tried to replace these “soft law”
provisions of the ECT by legally binding obligations. The Trade Amendment resulted
in the following compromise:
• The previous “best endeavours” clause has been maintained and, in addition, has
been extended to energy-related equipment;
• A mechanism has been incorporated allowing moving items into a “basket”
(Annexes EM II and EQ II) where legally binding tariff commitments would apply
at a later date. In annual reviews, the Conference has to examine the possibility of
such moving of items. In case of a positive conclusion, only a Conference decision
by unanimous vote is required without the need to go through a formal amendment
procedure. Up to now, no legally binding tariff commitments have been made.
IV. TRADE RELATED INVESTMENT MEASURES
Under the ECT and the WTO, Trade-Related Investment Measures (“TRIMs”) refer to
government measures that are mandatory or enforceable under domestic law or under
administrative rulings and that might be applied as a condition for the making of foreign
direct investment (“FDI”) in a host country or that may be a pre-condition for obtaining
an advantage (e.g. a subsidy) for an investment, and that are incompatible with the provisions
of Articles III (national treatment) and XI (elimination of quantitative restrictions)
of the GATT. Although there exists no exhaustive listing of TRIMs, the WTO
Agreement on TRIMs contains an illustrative list of such prohibited measures.
Article 5 and Annex TRM of the ECT replicate most of the substantive provisions of
the WTO Agreement on TRIMs. The ECT provisions confirm the prohibition of
TRIMs that are inconsistent with Articles III or XI of the GATT. Such measures
include local content requirements, trade balancing requirements, foreign exchange
restrictions and domestic sales requirements.
16
Exceptionally, Article 5 (3) allows TRIMs if they relate to the eligibility of products
for export promotion, foreign aid, government procurement, preferential customs
duties or quota programmes.
As in the WTO Agreement, Article 5 (4) of the ECT allowed CPs to temporarily maintain
non-conforming TRIMs that existed at least 180 days before the signature of the
Treaty, subject to specific notification and phase-out requirements contained in Annex
TRM. Under Annex TRM of the ECT, CPs not members of the WTO were obliged to
notify existing TRIMs within 12 months after the entry into force of the ECT (i.e. by
15 April 1999) if they wished to benefit from a transitional period of three years that
ended on 15 April 2001. No such notification has been made. In legal terms, this
implies that no CP to the ECT may maintain or adopt new TRIMs with respect to
products listed in Annexes EM I and EQ I of the ECT.
V. TRADE IN SERVICES
During the negotiations of the Trade Amendment, it was discussed whether or not to
incorporate provisions of the WTO General Agreement on Trade in Services
(“GATS”). It was finally considered that this issue was too complex and that it would
need more time for reflection. Therefore, neither the ECT Interim Provisions on
Trade-Related Matters nor the Trade Amendment declares any provisions of the
GATS applicable under the ECT.
However, trade in services is not completely outside the scope of the ECT. Through
the ECT provisions on investment and movement of key personnel, trade in energy
services provided through commercial presence and presence of natural persons (i.e.
as defined as modes of delivery 3 and 4 in the GATS) is covered by the Treaty,
although the substantive provisions of the ECT concerning market access and national
treatment differ from those of the GATS. 5
17
5
As far as investment/commercial presence is concerned, a noteworthy difference between the ECT and the
GATS is that the ECT does not provide for legally binding MFN treatment for the pre-establishment phase
of investment. However, such treatment (and national treatment) are to be established in a so-called
“Supplementary Treaty” (see below pages 22-24).
VI. THE ROLE OF THE ENERGY CHARTER SECRETARIAT
The ECT trade provisions require the Energy Charter Secretariat to act, vis-à-vis the
ECT constituency, as a “surrogate” WTO Secretariat with regard to energy and
energy-related trade with and between non-WTO CPs, pending their membership in
the WTO.
The Secretariat has only very limited resources for this task. Therefore, up to now
efforts concentrate on providing transparency and establishing appropriate notification
mechanisms. For example, the Secretariat
• Collects and disseminates trade-related notifications;
• Provides technical assistance to non-WTO members for the implementation of
their WTO-based ECT obligations or any other matter related to their accession to
the WTO. In this context, the Secretariat has organized three major events to date:
the 1999 Geneva Seminar on Notification Obligations under the WTO, the 2000
Brussels Workshop on Dispute Settlement and the 2001 Berne Training Courses on
Technical Barriers to Trade (the latter in cooperation with the World Trade
Institute);
• Provides technical assistance on dispute settlement procedures;
• Prepares analytical studies on trade issues as requested by the Charter Conference
or the Group on Trade;
• Exchanges information with the WTO and other relevant international organisa-
tions.
A more detailed overview of the Secretariat’s activities in this regard can be found in
Annex 4.
18
C. INVESTMENT
SUMMARY
• The ECT promotes FDI in the energy sector by protecting foreign investors
against the most important political risks in the host country (discrimination,
expropriation, losses resulting from strife, transfer restrictions, breach
of individual investment contracts);
• The ECT contains a comprehensive dispute settlement mechanism, covering
both investor-state arbitration and inter-state arbitration;
• The ECT includes a “best-efforts” clause concerning non-discrimination in
the pre-establishment phase (i.e. the making of an investment), and provides
for negotiations to transform it into a legally binding obligation.
I. INTRODUCTION
The investment chapter is a cornerstone of the ECT. Its provisions aim to promote and
protect foreign investment in member countries. To this end, the Treaty grants a
number of fundamental rights to foreign investors with regard to their investment in
the host country. Foreign investors are protected against the most important political
risks, such as discrimination, expropriation and nationalisation, breach of individual
investment contracts, damages due to war and similar events, and unjustified
restrictions on the transfer of funds. The dispute settlement provisions of the Treaty,
covering both inter-state arbitration and investor-state dispute settlement, reinforce
these investor rights.
The perceived degree of political risks in the host country considerably affects the
decision of foreign companies whether to make an investment in the first place or not,
and what level of return it would require. The higher the perceived risk, the higher the
return that the foreign investors demand. Vice versa, the lower the perceived risk, the
more capital is likely to be invested and the more potential revenue the host country
will gain. By reducing the political risks that foreign investors face in the host
country, the ECT seeks to boost investor confidence and to contribute to an increase in
international investment flows.
The ECT’s investment provisions build upon the content of bilateral investment
treaties as they have developed during the last half-century. ECT negotiators felt no
19
need to “re-invent the wheel”, as the principles and rules embodied in these agreements
are recognised universally. Nevertheless, the ECT has some added value as
compared to the bilateral investment treaties. The ECT:
• Is the first multilateral agreement on the promotion and protection of foreign
investment, covering all important investment issues and providing high standards
of protection;
• Reflects the close inter-relationship between investment, trade and transit in the
energy sector by covering not only investment issues per se, but also related areas,
such as trade and transit;
• Establishes a permanent discussion forum between members on all energy-related
aspects of foreign investment;
• Provides for the future establishment of the principle of non-discrimination with
regard to the making of investment in a legally binding manner.
The investment provisions of the ECT respect the sovereignty of member countries in
conducting their domestic investment-related policies, including in the area of energy.
Member countries remain free to adopt rules and regulations for foreign energy
companies investing in their territories, provided that they comply with the Treaty’s
core principle of non-discrimination, and the other investment-related obligations.
II. OVERVIEW OF THE ECT’S INVESTMENT PROVISIONS
1. Definition of “Investment” and related Issues
Given the fact that the ECT is a sectoral agreement on energy, the Treaty links the
definition of an “investment” to additional definitions concerning the energy sector.
The following elements are relevant:
• The definition of “investment”;
• The definition of “Economic Activity in the Energy Sector”; and
• The definition of “Energy Materials and Products”.
Combining the three definitions, the scope of the ECT can be described as follows:
“Investment Associated with Economic Activity in the Energy Sector covering certain
Energy Materials and Products.”
a. Investment
The ECT contains a broad, non-exhaustive, “asset-based” definition of an “investment”.
According to Article 1(6), “investment” means every kind of asset, owned or
controlled directly or indirectly by an investor. The definition includes, inter alia:
20
• Tangible and intangible, moveable and immovable property;
• Shares, stocks, or other forms of equity participation in a company;
• Bonds and other debt of a company;
• Claims to money and claims to performance pursuant to a contract having an
economic value associated with an investment;
• Intellectual Property;
• Returns;
• Any right conferred by law, contract or licence.
The definition also covers assets that are indirectly owned or controlled by the investor
(e.g. assets owned by a holding company). The ECT contains a common
Understanding (Nr. 3) concerning the interpretation of the term “control”. It covers
both equity interests of the investor and the ability to exercise substantial influence
over the company. Furthermore, the definition extends to any investment “associated
with” an economic activity in the energy sector. The term “associated with” implies
that it includes not only the establishment of an energy company as such (e.g. a refinery),
but also investments indirectly linked to economic activity in the energy sector
(e.g. office space associated with a refinery).
b. Economic Activity in the Energy Sector
Pursuant to Article 1 (5), “Economic Activity in the Energy Sector” means an economic
activity concerning the exploration, extraction, refining, production, storage,
land transport, transmission, distribution, trade, marketing, or sale of energy materials
and products 6. Understanding Nr. 2 relating to this provision includes an illustrative
list of such activities.
c. Energy Materials and Products
Annex EM lists those “Energy Materials and Products” that are covered by the Treaty.
These are nuclear energy (e.g. uranium, other radioactive chemical elements, heavy
water), coal, natural gas, petroleum, petroleum products, and electrical energy.
2. General Treatment of Foreign Investors
The ECT intends to assure a basic standard of treatment for foreign investors.
According to Article 10 (1), each CP shall encourage and create stable, equitable,
favourable and transparent conditions for investors to make investments. Such conditions
include a commitment to accord at all times to investments of investors of other
21
6
Except those included in Annex NI (in particular oils and other products of the distillation of high
temperature coal tar, fuel wood, and charcoal), or concerning the distribution of heat to multiple premises.
CPs fair and equitable treatment. Investments shall enjoy the most constant protection
and security. In no case shall such investment be accorded treatment less than that
required by international law, including treaty obligations.
3. The Principle of Non-Discrimination
a. Treatment of Established Investments
Protection against discrimination is one of the most important components in creating
a favourable investment climate. Article 10 (7) obliges host countries to accord to
investments of investors of other CPs, and to their related activities including management,
maintenance, use, enjoyment or disposal, treatment at least as favourable as that
they accord to the investments of their own investors or of investors of other countries,
i.e., the better of national treatment or most-favoured-nation (“MFN”) treatment. For
example, an export license may not be granted exclusively to domestic investors or to
the investors of a particular foreign country, if the other foreign investors are in similar
circumstances.
CPs are not allowed to lodge individual exceptions to the principle of non-discrimination
for established investments. However, there are three general cases where the
principle of non-discrimination does not apply fully or where the precise manner of its
application needs further clarification:
• In accordance with the practice in other international investment treaties, there are
exceptions to the principle of non-discrimination concerning taxation matters
(Article 21) 7;
• A Supplementary Treaty will deal with the modalities of the application of the principle
of non-discrimination concerning grants and other financial assistance for
technology R&D (Article 10(8));
• The protection of intellectual property rights shall be governed by the relevant
international agreements (Article 10 (10)). Pursuant to Understanding Nr. 5, CPs
recognise the necessity for adequate and effective protection of such rights according
to the highest internationally accepted standards.
In addition, Decision Nr.2 concerning Article 10 (7) grants the Russian Federation the
right to require from foreign investors to obtain legislative approval for the leasing of
federally owned land. In doing so, Russia has to respect the principle of most-favoured
nation treatment.
22
7
See also the following chapter on “Miscellaneous Provisions”, pages 38-39.
b. The Making of Investment
The legally binding obligation to grant non-discriminatory treatment applies only once
an investment has been made (so-called “post-establishment phase”). While
negotiating the ECT, it was intended to extend the principle of non-discrimination to
the making of an investment. As a result, foreign investors would have been on equal
legal footing with their domestic competitors in the host country when applying for an
investment authorisation or any other kind of permission necessary for their establish-
ment.
This very ambitious goal could not be realised within the three years of negotiations of
the ECT. Negotiators therefore agreed on an intermediary solution:
• As a first step, Article 10 (2) of the ECT has established a non-legally binding “best
efforts” clause for CPs to grant foreign investors non-discriminatory treatment
concerning the making of their investments. In addition, pursuant to Article 10 (5),
CPs shall endeavour not to introduce new restrictions for foreign investors
concerning the making of an investment (“standstill”), and to progressively reduce
remaining restrictions (“rollback”). Furthermore, Article 10 (6) allows CPs to
make at any time a legally binding voluntary commitment to grant foreign investors
non-discriminatory treatment with regard to the making of an investment (so-called
“pre-establishment phase”).
• Secondly, Article 10 (4) provides for negotiations on the extension of the nondiscrimination
principle to the pre-establishment phase. These negotiations (on a
so-called “Supplementary Treaty”) began in 1995. Although negotiators have come
close to a final agreement, a number of political issues still need to be resolved.
The basic structure of the draft “Supplementary Treaty” consists of two
components:
• An obligation of CPs to grant foreign investors national treatment and most
favoured nation treatment concerning their establishment in the host country.
According to Understanding Nr. 10 to the ECT, this includes the issues of
privatisation and de-monopolisation;
• The right of each CP to launch individual exceptions to this commitment
(“top-down approach”).
The application of the principle of non-discrimination to the pre-establishment phase
is of particular importance in the energy sector where often a licence or concession is
required before investors can start their operations. The “Supplementary Treaty”
would also have considerable significance in the context of privatisation. Foreign
investors who would like to participate in tender procedures and the subsequent sale of
state assets would be protected against discrimination.
23
The Secretariat has compiled a so-called “Blue Book” 8, containing all exceptions to
the principle of non-discrimination that member countries/signatories have reported
concerning the making of a foreign investment in the energy sector. The exceptions
are regularly reviewed in the ECT Investment Group, either through individual country
examinations or horizontal reviews (e.g. concerning existing authorisation
procedures, screening mechanisms, restrictions on land ownership, etc). The aim is to
avoid the introduction of new discrimination (“standstill”) and to achieve a gradual
reduction of existing ones (“rollback”).
4. Expropriation
Protection of foreign investors in case of an expropriation is a core element of investment
agreements. Although the risk of politically motivated expropriations has
decreased substantially during the last decade, giving way to the opposite movement
of de-nationalisation and privatisation, it has not completely disappeared. In addition,
there is always the possibility of an expropriation for non-political reasons
(e.g. construction of a new road or building).
According toArticle 13, investments may only be expropriated if certain conditions are
fulfilled. The expropriation needs to be in the public interest, non-discriminatory, carried
out under due process of law and accompanied by payment of prompt, adequate
and effective compensation. Compensation shall amount to the fair market value of the
investment at the time immediately before the expropriation, or impending expropriation,
became known in such a way as to affect the value of the investment. The investor
may request compensation in a freely convertible currency, and it shall include interest
at a commercial rate until the date of the payment.
Furthermore, the investor has the right to prompt review of the valuation of the investment
and the amount of compensation under the law of the host country by a judicial
or other competent and independent authority of the host country (Article 13 (2)).
5. Compensation for losses
Article 12 deals with protection from strife. This provision is of considerable importance
for foreign investors who are concerned that the host country has not yet reached
a satisfactory level of political stability, resulting in the risk of internal armed conflicts
or even wars with other countries.
24
8
Available on the website of the Energy Charter Secretariat (www.encharter.org).
Article 12 (1) provides that in the event of war or other armed conflict, a state of
national emergency, civil disturbance or other similar event in the area of one of the
parties to the Treaty, the host government shall accord to foreign investors, who suffer
a loss concerning an investment made in its area, the most favourable restitution,
indemnification, compensation or other settlement that it provides to any investor. An
obligation to compensate foreign investors therefore only exists if the host country
decides to compensate its own investors or investors of any third state (i.e. granting of
national treatment/MFN treatment).
Article 12 (2) establishes an absolute obligation to compensate foreign investors in
particular circumstances. Foreign investors shall receive prompt, adequate and
effective restitution or compensation from the host government if they suffer a loss
resulting from the requisitioning of the investment, or unwarranted destruction of the
investment by the authorities or forces of the host government.
6. Transfer of payments
A considerable disincentive for foreign investors is the risk of not being able to
transfer capital connected to their investment to another country. This risk exists in
particular in countries with high inflation, long delays in transfer systems, widely
fluctuating exchange rates, or poor foreign exchange reserves.
Article 14 (2) obliges host countries to proceed with the transfer without delay.
According to Article 14 (3), transfers shall be made at the market rate of exchange in a
freely convertible currency. Such transfers include the initial and additional capital,
returns, payments under a contract, unspent earnings and other remuneration of
personnel, proceeds from the sale or liquidation of the investment, payments arising
out of the settlement of an investment dispute and compensation for losses or
expropriation.
There are three specific exceptions to this obligation:
• The host government may protect the rights of creditors, ensure compliance with
laws on securities and the satisfaction of judgements in proceedings, through
equitable, non-discriminatory and good faith application of its laws (Article 14 (4));
• Countries belonging to the Commonwealth of Independent States (“CIS”) may, as
concerns transfers among themselves, conclude agreements that transfer of
payments shall be made in the currencies of such parties, provided that such
agreements ensure that investors of other parties to the ECT are accorded the better
of national and MFN treatment (Article 14 (5));
• Returns-in-kind may be restricted in circumstances where the GATT/WTO allows
25
export restrictions, except that such returns must be allowed in accordance with the
provisions of any written agreement with the host state (Article 14 (6)).
In addition, Decision Nr. 3 concerning Article 14 grants CIS countries the right to
apply restrictions on the movement of capital by its own investors. However, such
restrictions may not impair the rights granted to foreign investors with respect to their
investments. This means that, while transfer restrictions may be applied vis-à-vis a
foreign subsidiary established in a CIS country, this is not allowed if the parent
company of this subsidiary requests the transfer. Furthermore, in no case must such
restrictions affect current transactions.
Decision Nr. 3 required CPs wishing to apply this kind of restriction to make a notification
to the Charter Secretariat no later than 1 July 1995. Within this timeframe, only
the Russian Federation made a notification.
7. Individual investment contracts
According to Article 10 (1), last sentence, each CP shall observe any obligations it has
entered into with an investor or an investment of any other CP. This provision covers
any contract that a host country has concluded with a subsidiary of the foreign investor
in the host country, or a contract between the host country and the parent company of
the subsidiary.
Respect of the international principle of “pacta sunt servanda” is of particular
relevance in the energy sector where most major investments are made on the basis of
an individual contract between the investor and the state.
Article 10 (1) has the important effect that a breach of an individual investment contract
by the host country becomes a violation of the ECT. As a result, the foreign investor
and its home country may invoke the dispute settlement mechanism of the Treaty.
However, Article 26 (3)(c) grants CPs the right to exclude international arbitration in
such cases. Four countries (Australia, Canada 9, Hungary, Norway) have opted for this
solution; they are listed in Annex IA.
8. Key personnel
Article 11 permits foreign investors to employ key personnel of their choice, regardless
of nationality, so long as such personnel has the required work and residence
permits. The Treaty requires the host country, subject to its laws and regulations, to
26
9
Canada did not sign the Treaty.
examine in good faith requests by the foreign investor concerning the entry and temporary
stay of employed key personnel to be engaged in activities connected with the
making or development, management, maintenance, use, enjoyment or disposal of
relevant investments. This includes, for instance, advice or technical services by
energy experts.
9. Subrogation/Transfer of rights
Article 15 contains a so-called “subrogation clause”. It provides for the transfer of
rights that foreign investors might have vis-à-vis the host country if they receive compensation
from their home country under an investment insurance or guarantee. In
this case, the host country shall recognise the assignment to the indemnifying party of
all rights and claims with regard to the investment. It shall also acknowledge the right
of the indemnifying party to exercise all such rights and enforce such claims.
10. Relation to other Agreements
Article 16 clarifies the relation of the ECT to other international investment agreements.
In case of an overlap between the agreements, the provisions that are more
favourable to the foreign investor shall prevail.
11. Non-Application of the Investment Provisions in certain circum-
stances
Article 17 gives CPs the right to deny the advantages of the investment provisions in
two cases.
• Article 17 (1) covers so-called “mailbox companies” (i.e. a company that has no
substantial business activities in the country where it is organised), provided that
such company is owned or controlled by nationals of a third state;
• Article 17 (2) addresses indirect investments involving certain categories of third
(non-member/non-signatory) countries. The provision applies if the denying CP
does not maintain diplomatic relations with the third country, or adopts or maintains
measures that prohibit or restrict transactions with investors of that state.
(Example 1: An investment originating in member country A through third country
B in host member country C. Example 2: An investment originating in third
country A through member country B in host member country C. In both
examples, host member country C would not maintain diplomatic relations with the
third country [A,B] or would restrict business activities with that state.)
27
III. THE ECT INVESTMENT GROUP
Under the supervision of the Charter Conference, the ECT Investment Group is the
institutional body for the discussion of all investment-related issues covered by the
Treaty. Its main tasks are:
• To provide a policy forum for all investment-related matters under the Treaty;
• To conduct horizontal and country-specific reviews concerning the investment
climate and the issue of market restructuring/privatisation;
• To exercise peer pressure with regard to the reduction of remaining restrictions for
foreign investment in the energy sector;
• To give general recommendations or individual advice to specific members
concerning their investment-related energy policies;
• To provide information on recent developments in the investment-related energy
policies of member countries;
• To perform any other task assigned by the Charter Conference.
28
D. TRANSIT
SUMMARY
• The ECT obliges CPs to facilitate energy transit on a non-discriminatory
basis;
• The ECT explicitly covers grid-bound energy transport;
• The ECT does not oblige CPs to grant third party access;
• The ECT provides for a special conciliation mechanism in case of transit
disputes;
• The ECT’s existing provisions are to be supplemented, extended and
modified by a legally binding Transit Protocol that is currently being
negotiated;
• Non-legally binding model agreements (both intergovernmental agreements
and agreements between host governments and private companies) are
being developed as guidelines for individual energy transit projects.
I. DEFINITION OF “TRANSIT” AND APPLICABLE RULES
The term “Transit” can be defined as covering the transport of goods from a country,
through at least one other country, to a third country. In the case of transit of energy for
example, flows of oil, natural gas or electricity across national boundaries via
pipelines or grids - there are two sets of rules that may apply:
• Firstly, those contained in international agreements between the states involved and
in customary international law;
• And secondly, those contained in private commercial contracts between market
participants, including governments and state companies.
Before the entry into force of the ECT in 1998, the international rules applicable to
transit were those included in Article V of the GATT, which enshrines the principle of
non-discrimination towards goods in transit. With rapidly increasing energy transit
flows over recent decades, transit transactions have become more complex, in particular
with regard to fees for services provided and to transit routes. It thus became
apparent that, in the specific context of energy transit,Article V of the GATT could not
solve all the related problems, and that more elaborate rules were needed that would
ensure transit on reasonable terms.
29
Such rules were developed through the ECT, whose transit provisions build upon the
non-discrimination principle embodied in Article V of the GATT. The aim of these
provisions, included in Article 7 of the ECT, is to provide for a balance between the
sovereign interests of States and the need for security and stability of transit.
The transit provisions of the Treaty confirm the principle of non-discrimination with
regard to access to energy resources and markets. The important new element contained
in the Treaty is its explicit coverage of grid-bound energy transport and the
enforceability of its provisions.A number of countries that previously did not participate
in any international transit arrangement now have, through the ECT, access to a set
of multilaterally accepted rules that can be used to protect their interests.
The Treaty defines “transport facilities” through which transit takes place as follows:
• High-pressure gas transmission pipelines;
• High-voltage electricity transmission grids and lines;
• Crude oil transmission pipelines;
• Coal shipping pipelines;
• Oil product pipelines; and
• Other specific fixed energy facilities, notably port facilities.
CPs commit themselves to taking all necessary measures to facilitate transit of energy.
They also undertake to promote the modernisation, development and operation of
inter-regional transport facilities, as well as the development of internal and crossborder
interconnection facilities. In addition, they agree to co-operate in order to
mitigate the effects of interruptions in energy supply.
Under the Treaty, measures to facilitate transit are to be taken without distinction as to
origin, destination or ownership of energy, or discrimination as to pricing, and without
imposing any unreasonable delays, restrictions or charges. This means that countries
may not refuse transit, or refuse to agree to the construction of a new pipeline or network
capacity, solely on the basis of the origin, destination or ownership of the energy.
CPs must not frustrate the establishment of new capacity, if transit through existing
capacity cannot be achieved on commercial terms, unless they demonstrate that such
new capacity would endanger the security or efficiency of their energy systems,
including the security of supply. At the same time, the ECT recognises that there may
be situations where national legislation may override the provisions of the Treaty,
reflecting sovereign rights of the country in areas such as environmental protection,
land use, safety, or technical standards.
30
Under the ECT, transit countries must not interrupt or reduce existing transit flows,
even if they have disputes with any other country concerning this transit. In such
cases, they have the possibility to invoke a special, rapid conciliation procedure under
Article 7(7) of the Treaty. Under this mechanism, an independent conciliator is
appointed, who is empowered to fix interim transit tariffs for up to twelve months if
the parties to the dispute fail to reach an agreement.
The ECT’s transit rules need to be considered in combination with its provisions on
investment protection and its extension of WTO trade rules to energy-related trade
among its CPs. When taken together, this “package” of rules and obligations provides
for substantially improved conditions for increased volumes of energy flows across
national boundaries.
II. NEGOTIATIONS ON A “TRANSIT PROTOCOL”
Article 7 of the ECT already represents the most elaborate set of multilateral legal
obligations in existence dealing specifically with energy transit flows. Nonetheless,
following the Treaty’s entry into force in 1998, a consensus view emerged among the
Energy Charter’s member governments that the Treaty’s existing rules in this area
needed to be further strengthened and elaborated. The following reasons led to this
development:
• The dissolution of the Soviet Union transformed previous internal transport routes into
international transit systems. This situation resulted in some cases in interruptions of
energy transit flows. The establishment of a clearer set of energy transit rules may help to
resolve these difficulties.
• The opening up of new energy production areas in, for example, the Caspian region
and Central Asia has entailed a corresponding increase in importance of energy
transit as an economic activity for many states.
• Energy projects involving transit are extremely capital intensive. By establishing
an enhanced set of international rule on energy transit flows, governments can
make an important contribution to increase investor confidence.
• Consumer markets, particularly in western countries, depend on reliable transit
routes in order to secure and diversify their energy imports. At the same time,
energy transit is a valuable source of income for transit states. Thus, transit is an
activity that serves the mutual interest of all states involved in it.
• A common transit regime may contribute to regional stability and security.
Support for developing further the Energy Charter’s role on transit issues was voiced
publicly at the highest levels during the course of 1998: by the G8 Leaders at their
31
Birmingham Summit Meeting, the European Union’s Energy Council, and the
Presidents of Azerbaijan, Georgia, Kazakhstan, Turkey and Uzbekistan at their
Summit in Ankara. It was widely recognised that the Energy Charter presented the
most appropriate forum within which to develop these rules, given the breadth of its
geographical coverage and its existing base of legal norms on transit within the ECT.
As a result, the Energy Charter Conference decided in December 1999 to launch
negotiations on a Transit Protocol to the ECT. The Protocol is intended to be a legally
binding document designed to strengthen the existing transit-related obligations on
governments under the ECT.
Among the key features under discussion in the present draft of the Transit Protocol
are the following obligations:
• To ensure that energy flows in transit are not interrupted;
• To ensure that access to available capacity for transit shipments is granted on a
transparent and non-discriminatory basis, and that negotiations on access to such
available capacity are conducted in good faith - although it should be underlined
that this provision does not entail an obligation to provide mandatory third party
access to pipeline systems, either in the CIS region or elsewhere in the Energy
Charter’s constituency;
• To ensure that tariffs charged for energy in transit are objective, reasonable and
non-discriminatory; and
• To ensure that due consideration is given to the energy supply needs of transit
countries themselves.
The Protocol would expand upon the existing provisions of Article 7 of the ECT. This
implies that nothing in the Protocol would deviate from, or contradict, any of the
existing obligations under the Treaty.
In parallel with the development of this new legal instrument, in the form of a
Protocol, the Energy Charter’s member states are also giving consideration to the
development of non-legally binding instruments relating to energy transit, designed to
provide member governments and energy companies with guidelines on best practices
to follow in relation to negotiations on individual projects involving transit.
Specifically, CPs are in the process of drawing up Intergovernmental and Host
Government Model Agreements for projects involving cross-border oil and gas
transit. Companies and governments would not be legally obliged to use these
models, but their aim is to provide a balanced set of recommendations, supported by
32
the political authority of the Charter Conference, that can be used, if individual
governments and companies so wish, as a starting-point for commercial negotiations
on particular projects.
When taken together, the transit-related provisions of the ECT and the Protocol itself,
once adopted, will constitute the Energy Charter’s “transit regime”. Full implementation
of the Charter’s transit regime should help significantly to improve the energy
security of producer states, consumer states, and transit countries.
33
E. MISCELLANEOUS PROVISIONS
SUMMARY
• The ECT promotes access to and transfer of energy technology;
• The ECT acknowledges the importance of competition and open capital
markets;
• The ECT confirms the principle of national sovereignty over natural energy
resources;
• The ECT includes obligations of CPs concerning environmental protection
when exploring, exploiting and using their energy resources;
• The ECT establishes the principle of transparency concerning energyrelated
legislation of CPs;
• The ECT does, in principle, not deal with taxation matters. However, the
ECT protects foreign investors against confiscatory taxes;
• The ECT obliges CPs to ensure that their state enterprises respect the
provisions of the Treaty;
• The ECT confirms that CPs are responsible for the observance of the Treaty
by their sub-national authorities;
• The ECT includes general exceptions (e.g. concerning the protection of life
and health, essential security interests, or concerning emergency energy
shortage situations);
• The ECT contains an MFN exception concerning regional economic
integration.
I. COMPETITION RULES
Up to now, competition issues have usually been dealt with in the context of free trade
or customs union agreements. There have been suggestions, firstly within the
Uruguay Round and then in the WTO, to develop truly multilateral competition rules.
This has proven to be difficult.
Several ECT CPs have until now only very limited experience with competition rules.
The ECT (Article 6) aims at creating modern and compatible competition legislation
in all ECT CPs.
34
Article 6 (1) states that CPs should work to alleviate market distortions and barriers to
competition. They also have to enforce laws as are necessary and appropriate to
address unilateral and concerted anti-competitive conduct (Article 6 (2)). In order to
familiarise those CPs with only limited experience in the area of competition rules
with such regulations, elements of co-operation have been introduced into Article 6
(3). They require experienced CPs to provide other CPs, within available resources,
with technical assistance on the development and implementation of competition
rules. Article 6 (5) has introduced a special information and consultation procedure
concerning disputes on competition issues 10.
Since the competition provisions of the ECT are a novelty for several CPs, Article 32
allowed countries with economies in transition to temporarily suspend full compliance
with them. Article 32 ceased to apply on 1 July 2001.
II. TRANSFER OF TECHNOLOGY
The transfer of technology is of considerable importance in the context of international
energy cooperation. The exploration and exploitation of energy resources are capital
intensive and may prove to be technically difficult. They may also be potentially
environmentally harmful. In all these respects, state-of-the-art technology may be
the best possible means to make use of energy resources in a cost-efficient,
technologically sound and environmentally friendly manner.
According to Article 8 (1), CPs agree to promote access to and transfer of energy
technology on a commercial and non-discriminatory basis. However, this obligation
is subject to the existing laws of each CP, including its rules on the protection of
intellectual property rights. CPs are neither obliged to amend their respective existing
legislation, nor does Article 8 impose a mandatory technology transfer. Article 8 can
therefore be characterised as a “best efforts” clause concerning the encouragement of
technology transfer.
Pursuant toArticle 8 (2), CPs shall eliminate existing and create no new obstacles to the
transfer of technology, to the extent that this is necessary to give effect to paragraph (1)
and subject to non-proliferation and other international obligations.
35
10
For details see chapter on “Dispute Resolution”, page 58.
III. ACCESS TO CAPITAL
An important element of the promotion of cross-border trade and investment is the
right of foreign traders and investors to have access to the capital markets of the host
country. Foreign investors in particular might be more interested in a loan provided by
banks located in the host country than in the home country, because this avoids the
risks of transfer restrictions and exchange rate fluctuations. However, there may be
cases where the host county’s financial market is too weak or too small to guarantee
foreign companies unlimited access.
According to Article 9 (1), CPs acknowledge the importance of open capital markets
in encouraging the flow of capital to finance energy trade and investment. Therefore,
each CP shall endeavour to promote conditions for access to its capital market by
companies and nationals of other CPs for the purpose of such financing on a non-discriminatory
basis. The provision does not amount to a legally binding obligation
because the capital markets are generally in the hands of private investors.
Article 9 (2) deals with financing activities by home countries of energy traders and
investors. The provision confirms that a CP may adopt or maintain programmes
relating to the promotion of trade or investment abroad (e.g. public loans, grants,
insurance, guarantees). Such programmes shall apply to energy trade and investment
with/in other CPs. Pursuant to Article 9 (3), CPs shall, in implementing these
programmes, seek to cooperate with international financial institutions.
IV. SOVEREIGNTY OVER ENERGY RESOURCES
Energy issues are closely related to national sovereignty. Article 18 (1) confirms the
principle of state sovereignty over natural resources. This sovereignty must be
exercised in accordance with and subject to the rules of international law. Apart from
this obligation, CPs remain free to conduct their national policies, including in the
area of energy. Pursuant to Article 18 (2), CPs also retain their sovereign right to
determine the system of property ownership of energy resources.
Article 18 (3) contains an illustrative list of sovereign rights that are not affected by
the Treaty. Each state continues to have the right
• To decide the geographical areas to be made available for exploration and development
of its energy resources;
• To decide on the optimalization of their recovery and the rate at which they may be
depleted or otherwise exploited;
36
• To specify and enjoy any taxes, royalties or other financial payments payable by
virtue of such exploration and exploitation;
• To regulate the environmental and safety aspects of such exploration, development
and reclamation; and
• To participate in such exploration and exploitation, inter alia, through direct
participation by the government or through state enterprises.
Article 18 (4) deals with the issue of authorisations, concessions and licences in
connection with access to energy resources. Given the fact that in many countries a
considerable part of economic activities in the energy sector is subject to such
requirements, it is very important for foreign investors that they can compete with
domestic companies on equal legal footing when applying for a permit. Article 18 (4)
pursues this objective by stipulating that each CP shall undertake to facilitate access,
inter alia, by allocating such authorisations, etc, in a non-discriminatory manner on
the basis of published criteria.
V. ENVIRONMENTAL ASPECTS
The energy sector has a high potential to pollute the environment. Therefore, Article
19 (1) commits CPs to strive to minimize in an economically efficient manner harmful
environment impacts inside or outside their area from all domestic operations within
the energy cycle, taking into account obligations existing under other international
agreements and in pursuit of sustainable development. In doing so, CPs
• Shall act in a cost-effective manner;
• Shall strive to take precautionary measures, and
• Agree that, in principle, the “polluter pays” principle should apply.
Article 19 (1) also requires CPs to take various concrete actions. They relate to, inter
alia, the promotion of market-oriented price reform and a fuller reflection of environmental
costs and benefits, the encouragement of international co-operation, the
improvement of energy efficiency 11, information sharing on environmentally sound
and economically efficient energy policies, promotion of environmental impact
assessment activities and monitoring, promotion of public awareness on relevant
environmental programmes, and R & D of energy efficient and environmentally sound
technologies, including the transfer of technology.
37
11
See also the chapter on “Energy Efficiency”, page 43.
Article 19 does not directly impose environmental obligations on foreign investors
operating in their host countries. This approach reflects the principle that environmental
protection is primarily a matter of national policy. It is the host country’s
domestic legal order that sets environmental standards for national and foreign
companies operating in its territory. International environmental agreements may be
applicable by their integration into the domestic laws and regulations.
Disputes arising from the application or interpretation of the environmental related
provisions of Art 19 of the Treaty are to be dealt with by the Charter Conference only
if arrangements for the consideration of such disputes do not exist in other appropriate
international fora 12.
VI. TRANSPARENCY
An important precondition for successful economic energy cooperation is the availability
of information about the applicable legal rules in individual countries.
Transparency of rules and regulations continues to be a major problem in several
transition countries. Article 20 introduces various transparency obligations of CPs:
Article 20 (1) confirms the application of the transparency rules existing under the
GATT/WTO with regard to trade. Article 20 (2) extends these rules insofar as CPs
shall promptly publish any laws, regulations, judicial decisions and administrative
rulings of general application, as well as applicable international agreements, which
affect other matters covered by the Treaty. However, this obligation does not require a
CP to publish confidential information. Furthermore, pursuant to Article 20 (3) each
CP shall designate one or more enquiry points to which requests for information about
the legal framework may be addressed.
VII. TAXATION
The issue of taxation has great significance both for the private economic agents in the
energy sector and the involved states. While foreign companies have a keen interest
that they are not fiscally discriminated, host countries may wish to retain some discretion
concerning their tax treatment. In an international context, the issue is primarily
and most commonly dealt with in bilateral agreements on the avoidance of double tax-
ation.
38
12
See also the chapter on “Dispute Settlement”, page 58.
The ECT confirms the priority of the latter agreements and seeks to avoid a potential
conflict with them. Accordingly, Article 21 excludes taxation matters, in principle,
from the scope of application of the agreement. However, this carve-out of taxation
issues does not affect the application of the principle of non-discrimination as
included in agreements on the avoidance of double taxation existing among ECT CPs.
Article 21 does not entirely exclude taxation matters:
According to Article 21 (2),(3), the principle of non-discrimination in transit and
investment matters shall apply to taxation measures other than those on income and
capital. This means that this principle remains, in general, applicable with regard to
indirect taxes in these two areas. However, even there the principle of non-discrimination
shall not apply concerning
• Advantages accorded by a CP in an agreement on the avoidance of double taxation;
• Any taxation measure aimed at ensuring the effective collection of taxes.
Pursuant to Article 21 (4), the ECT covers taxation matters in trade with the exception
of income or capital taxes.
According to Article 21 (5), the provision on expropriation (Article 13) applies to
taxes. A foreign investor may therefore claim that a tax measure has expropriatory
effects. However, the investor is not allowed to submit the case immediately to arbitration,
but has first to contact the competent tax authorities. The tax authorities of the
two countries concerned shall strive to resolve the issue within six months. If the issue
cannot be settled within this period, the foreign investor and/or his home country may
invoke the dispute settlement mechanisms under Articles 26, 27. The tribunal may
take into account any conclusions arrived at by the tax authorities regarding whether
or not the tax amounts to an expropriation.
VIII. STATE AND PRIVILEGED ENTERPRISES
In many ECT member countries, state enterprises continue to play a major role in the
energy sector. They often have a dominant or even monopolistic position in their
home countries. When negotiating the ECT, it was important to deal with this issue.
The solution adopted in the Treaty is to establish various obligations of CPs with
regard to the conduct of their state enterprises. By contrast, the ECT does not create
direct obligations of these companies themselves.
39
Pursuant to Article 22 (1), each CP has to ensure that its state enterprises respect the
investment-related Treaty provisions when they sell or otherwise provide goods and
services. In particular, Article 22 (1) prohibits discrimination of foreign investors in
this respect. This ensures, for example, the provision by state enterprises of natural
gas or electricity to foreign investors at prices no higher than those charged to domestic
companies.
According to Article 22 (2), no CP shall encourage or require its state enterprises to
conduct its activities in its area in a manner inconsistent with any other obligation of
that CP under the Treaty. For instance, this would apply to state enterprises that operate
transit pipelines. As an example, Article 22 (2) prohibits that a CP encourages or
requires such an enterprise to charge higher transit fees from foreign pipeline users
than from domestic users for a comparable internal transport. By contrast, Article 22
(2) would not apply if the state enterprise itself charges higher fees (i.e. without being
encouraged or obliged by the CP).
Pursuant to Article 22 (3), each CP has to ensure that enterprises, agencies or other
organisations that it establishes and entrusts with regulatory, administrative or other
governmental authority, exercise such authority consistent with the CP’s Treaty
obligations. As in the case of Article 22 (1), the provision primarily aims to prohibit
discrimination against foreign energy companies (e.g. as regards the application of
official tariff rates, or the adoption of energy-related regulations and administrative
decrees).
Finally, Article 22 (4) prohibits CPs to encourage or require any enterprise, agency or
other organisation to which it grants exclusive or special privileges to conduct its
activities in its area contrary to its Treaty obligations. This would, for instance, cover
private enterprises to which a CP has granted a monopoly position by law.
IX. OBSERVANCE BY SUB-NATIONAL AUTHORITIES
Several of the ECT CPs are organised as federal states. It therefore became necessary
to deal with the issue of observance of the Treaty’s obligations by sub-national units.
Article 23 (1) confirms that each CP is fully responsible for the observance of the
Treaty and shall take such reasonable measures as may be available to it to ensure such
observance by its regional and local governments and authorities. The Treaty respects
the internal organisational structure of a CP, as it does not impose concrete obligations
on how observance shall be ensured. In particular, a CP is not obliged to take
measures that are not available in its internal legal order or are even contrary to it.
40
Article 23 (2) clarifies that the dispute settlement mechanisms included in Parts II, IV
and V of the Treaty apply for measures taken by sub-national authorities.
X. EXCEPTIONS
The ECT contains a number of exceptions to the Treaty obligations. One can distinguish
general exceptions and transitional arrangements:
1. General exceptions
Article 24 (2) allows measures (1) necessary to protect human, animal or plant life or
health, (2) in emergency energy shortage situations, and (3) to benefit investors who
are indigenous or socially or economically disadvantaged persons. However, these
measures must not constitute a disguised restriction on economic activity in the
energy sector or an arbitrary or unjustifiable discrimination. The measures shall be
duly motivated and not impair benefits reasonably expected under the Treaty to an
extent greater than is strictly necessary to the stated end.
The general exceptions also cover measures related to essential security interests, or
the non-proliferation of nuclear weapons, and the maintenance of public order
(Article 24 (3)).
Article 24 (4) establishes an MFN exception for members of a free trade area or
customs union, and for parties to an economic co-operation agreement between CIS
countries, pending the establishment of the latter’s mutual economic relations on a
definitive basis.
Pursuant to Article 24 (1), none of these exceptions apply to Article 12 (compensation
for losses), Article 13 (expropriation) and Article 29 (interim provisions on traderelated
matters).
2. Transitional arrangements
Until 30 June 2001, there existed a number of transitional arrangements for countries
in transition. According to Article 32, they had the right to ask for the suspension of
certain Treaty obligations. These transitional arrangements recognised that certain
countries need time to adapt to the requirements of a market economy. The bulk of
these measures referred to competition laws and transparency obligations. With
regard to investment, Article 32 allowed, inter alia, for the suspension from Article 10
(7) - principle of non-discrimination - and Article 14 (1d) - transfer of unspent
earnings.
41
XI. ECONOMIC INTEGRATION AGREEMENTS
Article 25 contains a separate MFN exception for members of an economic integration
agreement (EIA). This provision covers organisations (e.g. the European Union)
that show a higher degree of internal economic and political integration than a
customs or trade union. Such organisations grant special benefits amongst themselves
on a mutual basis. The ECT - like Article V GATS - recognises that such practice
constitutes a valid exception to MFN treatment.
Accordingly, Article 25 provides that an IEA member is not obliged to extend, by
means of the MFN principle, any preferential treatment applicable between EIA
members, to non-EIA members. In contrast to Article 24 (4a), Article 25 is not
limited to preferential treatment of investors, but refers to treatment under the whole
range of the Treaty.
Article 25 (2) defines an “economic integration agreement” as an agreement substantially
liberalizing, inter alia, trade and investment, by providing for the absence or
elimination of substantially all discrimination between or among parties thereto
through the elimination of existing discriminatory measures and/or the prohibition of
new or more discriminatory measures.
42
F. ENERGY EFFICIENCY
SUMMARY
• The ECT requires that CPs strive to minimise in an economically efficient
manner harmful environmental impacts resulting from energy-related
activities in their territories;
• The Protocol on Energy Efficiency and Related Environmental Aspects
(“PEEREA”) promotes the principles of “full-cost”, “cost effectiveness”
and “sustainable development”;
• The PEEREA provides guidance and includes commitments concerning the
development and implementation of energy efficiency programmes;
• The PEEREA provides for a multilateral discussion and cooperation forum
on energy efficiency issues.
I. THE ORIGINS OF THE CONCEPT OF ENERGY EFFICIENCY
The concept of energy efficiency started to develop and gain importance in the aftermath
of the first oil crisis in the early 1970s. In this period, energy efficiency became
a distinct area of energy policy for most governments of industrialised countries.
In formulating their approach to energy policy, governments initially tended to give
priority to issues regarding energy security or support in balancing supply and
demand. Following the adjustment of the energy prices after the two oil crises,
however, environmental concerns and industrial competitiveness became driving
forces of the energy conservation policies in western countries. It was at this point
that energy efficiency programmes came to the forefront, both in terms of their costeffectiveness
and capacity to diminish adverse environmental impacts.
In less industrialised countries and in countries with a large amount of domestic
energy resources, the impact of the oil crises was less strongly perceived.
Governments in these countries did therefore not consider the creation of a “culture”
of energy efficiency to be a priority. As a result, even now, energy intensity - i.e. the
ratio of total primary energy supply to GDP - in many of these countries is higher than
in western countries.
43
Today, for countries in transition towards a market economy, developing countries or
industrialised countries concerned about changes in the world’s climate systems, the
concept of energy efficiency has gained great importance. Instruments developed to
improve energy efficiency are associated with and support actions oriented towards a
cleaner environment, restructuring of economies and a higher standard of living. The
contribution of improvements of energy efficiency to the security of supply is also an
aspect not to be neglected, especially in view of the volatility shown by energy prices
in recent years.
This is the context in which the Energy Charter process agreed on the energy efficiency
provisions of the ECT and on the PEEREA. The Treaty requires that each CP strive to
minimise, in an economically efficient manner, harmful environmental impacts resulting
from all operations within the energy cycle in its area. Basic principles with
strong influence on the energy efficient behaviour in an economy, such as regards
price formation, liberal trading relations, public awareness and international
co-operation, are already anchored within the Treaty. Further, the PEEREA expressly
recognises the need to take into account particular national or regional circumstances
in developing and implementing policies and programmes relating to energy efficiency.
II. THE PEEREA
The Protocol was negotiated, opened for signature and entered into force at the same
time as the Treaty - on 16April 1998. It represents a clear expression by all participating
governments of the necessity and the value of a binding document to focus efforts to
tap the potential of energy efficiency as a concrete policy approach. The PEEREA
also provides a mechanism for international co-operation and exchange of experience
and ideas between countries with economies in transition and countries with twenty
years or more experience in the area of energy efficiency.
The Protocol promotes the principles of “full-cost”, “cost-effectiveness”, and
“sustainable development” as the appropriate platform for the development of energy
efficiency policies and greater international and institutional co-operation. The
PEEREA also reinforces the policy framework that will support greater energy efficiency:
the introduction of market mechanisms, price formation reflecting real energy
and environmental costs, cost-effective energy policies, transparency of regulatory
frameworks, dissemination and transfer of technologies, and promotion of investments.
The PEEREA is structured in five parts, namely scope and objectives, basic policy
principles, international co-operation, legal arrangements and final provisions. In
44
particular, the Protocol:
• Defines policy principles for the promotion of energy efficiency;
• Provides a framework for the development of co-operative and co-ordinated action;
• Provides guidance on the development of energy efficiency programmes; and
• Indicates areas of possible co-operation.
The PEEREA requires CPs to encourage: implementation of innovative approaches
for financing energy efficiency, introduction of fiscal and financial incentives for the
diffusion of energy efficient technologies, commercial trade and cooperation in the
area of energy efficient and environmental sound technologies and action of the
private sector.
The Protocol includes specific commitments that are essential in improving energy
efficiency and reducing harmful environmental impacts. It expressly stipulates that
governments shall:
• Formulate policy aims and strategies (Article 5);
• Establish policies (Article 3.2);
• Develop, implement, and update programmes (Article 8.1);
• Create the necessary legal (Article 3.2), regulatory (Article 3.2) and institutional
(Article 8.3) environment; and
• Cooperate/assist internationally (Article 3.1).
It is of vital importance for all countries, notably for transition and developing countries,
to implement the principles and commitments laid out in the Protocol. Without
application of principles through which market signals encourage participants in the
economy to behave in a manner that is conscious to energy concerns, governmentfunded
activities and programmes will not reach their objectives. Scarce resources
may be wasted, as energy efficiency will not improve.
III. IMPLEMENTATION OF THE PEEREA
The Protocol supports energy efficiency by creating a legal framework to achieve
increased energy efficiency and to reduce the negative impact on the common environment.
Since the PEEREA became operational in April 1998, all participating countries
aiming at higher levels of energy efficiency have been provided with a legal instrument
supporting the development and implementation of national legislation, policies and
programmes. It is the first time that all well-known principles of energy efficiency have
been incorporated into a multilateral agreement between so many countries.
45
The Protocol forms a solid foundation for concentrated and co-ordinated action in
implementing the jointly agreed obligations due to a number of factors:
Firstly, Countries in the process of economic reform are, in general, at a crucial
point in the process of restructuring their economies. With energy
consumption down and economics taking off on a new, market oriented
basis, sustainable development is based on policies of cost-effective
supply and demand of energy;
Secondly, Instruments developed to improve energy efficiency are associated with
and support actions oriented towards a cleaner environment. After Kyoto,
the emphasis on energy efficiency as a major tool in achieving the obligations
has assumed greater importance;
Thirdly, Governments have to play an important role in creating instruments for
improving energy efficiency in parallel with market mechanisms being in
place;
Fourthly, Recent experience of the countries in the process of economic reform
indicates that in the absence of appropriate legislation and domestic
programmes, the results of technical and financial assistance provided by
international organisations are limited;
Finally, Globalisation brings more competition and fewer opportunities for
protectionism of domestic industries that need to adapt to high standards
of efficiency in order to be able to survive.
It is in the context of general market reforms and the circumstances described above that
the Protocol can play an important role in addressing aspects of energy efficiency that are
of major importance in the process of developing and restructuring the economy and
improving the standard of living.
In accordance with the provisions of the Protocol, important aspects to be considered
in developing and implementing cost-effective energy efficiency policies include:
1. Developing energy efficiency strategies and legislation as well as
monitoring their implementation
It is one of the basic commitments that countries should develop such strategies, laws
and regulations as appropriate for the improvement of energy efficiency. At the same
time, the Protocol calls for member countries to co-operate and assist each other in
this respect, making effective use of the work and expertise developed worldwide.
Therefore, the definition of standards designed to improve the efficiency of energy
using equipment, and efforts to harmonise them internationally are also considered
important requirements of the PEEREA.
46
The experience of some countries with economies in transition indicates that the
efforts to develop legislation are not fully rewarded without ensuring adequate
enforcement mechanisms and institutions. It is therefore important to
develop/adapt institutions in such a way as to ensure proper implementation of the
existing policies, strategies and legislation. The role of governments, municipalities,
utilities, equipment manufacturers and non-governmental organisations in this
regard needs to be carefully defined and understood in practice. The Protocol
specifically requires the establishment of specialised energy efficiency bodies at
appropriate levels that are sufficiently funded and staffed to initiate and implement
policies.
2. Encouraging the introduction of market oriented prices, mechanisms
and programmes
Pricing is the foremost incentive for energy efficiency. The level and structure of
energy prices can induce cost-effective programmes on energy efficiency that are the
starting points from which to define national strategies on energy efficiency.
Under the PEEREA, countries are required to formulate strategies and policy aims to
improve energy efficiency and thereby reduce environmental impact of the energy
cycle as appropriate in relation to their own specific energy conditions. In order to
achieve the above-mentioned policy aims, the countries are required to develop,
implement and regularly update energy efficiency programmes that are best suited to
their circumstances.
In transition economies and developing countries, there is a historic opportunity to
couple the foreseen economic growth with a low rate of increase in energy consumption
and emissions. Recognizing the challenges connected with the introduction of
energy efficiency, time is ripe to implement cost-effective policies for the supply and
demand of energy.
Energy efficiency should also be integrated as an underlying principle shaping general
development and restructuring policies. Sectoral policies, such as housing, industrial,
transport and infrastructure policies should integrate energy efficiency issues. The
efficient use of energy needs to be seen as the norm in the operation of all sectors.
3. Adopting policies that encourage the development of appropriate
regulations and standards, financial measures and incentives
For countries in the process of economic reform, the government should play an active
role in the economy in the period before market forces take effect. Striking the right
47
balance between governmental intervention and the introduction of market
mechanisms is therefore very important in the transition process. In the course of this
development, the PEEREA can offer a legal basis for the establishment of specific
regulations and programmes on energy efficiency.
The setting up of financing mechanisms for energy efficiency is one of the key
provisions of the Protocol. It explicitly requests third party financing, access to
private capital markets and the use of fiscal and financial incentives to energy users.
Input has to come from industry and the private sector as governmental resources are
limited. At the same time, international banks may support a limited number of
actions. This may in turn expose domestic commercial banks to the potential value
of energy efficiency investments, to the operation of special investment instruments
and to the specific risk factors per sector that are involved. By creating domestic
financing mechanisms for energy efficiency, the chance of energy efficiency
investments being properly considered in the multitude of restructuring/development
projects is likely to improve.
Efficient use of energy is also important due to the need to address problems such as
low purchasing power and employment. Often, despite the high level of education and
strong theoretical skills, transition economies and developing countries suffer from
limited experience in undertaking energy efficiency projects in a market economy
environment. Lack of funds and financing mechanisms make the situation even more
difficult. Co-operation and strong commitment at political level, for which the
PEEREA offers a unique legal basis, is thus very important.
4. Introducing energy efficient technologies and encouraging cogenera-
tion
This is another issue of great importance covered by the PEEREA, and also by the
Treaty. CPs are requested to promote the efficient use of energy and environmentally
sound technologies, services and management practices throughout the energy cycle.
The use of efficient and environmentally sound technologies, including cogeneration,
is important for the enhancement of economic efficiency and the reduction of local
and global harmful environmental impacts. Due to its high level of efficiency and its
major contribution to reducing emission levels, cogeneration should be adequately
reflected in legal and regulatory provisions in the new framework of liberalised markets.
Fiscal and financial incentives play a major role in facilitating their implementation.
Investments on the supply or demand side should then be assessed for their comparative
effectiveness. At the same time, technologies need to be accompanied by service
48
and management programmes, on both the production and consumption side. In
promoting these technologies, public or governmental agencies should firstly
understand and subsequently create awareness of the role of grants and demonstrative
projects. Otherwise, such initiatives could lead to a continuous form of subsidisation,
providing incorrect signals on the market performance of various technologies.
5. Intensifying international co-operation
Numerous international organisations and programmes are already focusing their
activities on regions characterised by high-energy intensity. Their aim is to support
legislative and institutional development and to encourage the transfer of technology.
Seminars, training courses, awareness campaigns, studies and demonstrative projects
have been developed in these countries. Despite these actions and the numerous
internal measures taken by the countries concerned, the results recorded so far
towards lower energy intensity and qualitative improvements in the condition of the
environment are not yet satisfactory.
Building a new type of platform for international co-operation is also an objective - as
is the mechanism by which the PEEREA aims to bring countries to a similar
operational level in the area of energy efficiency. It is for this reason that the Protocol
contains a relevant but not exhaustive list of areas where direct co-operation between
countries is encouraged. The PEEREA specifically requires countries to improve
co-operation in order to make efficient use of their expertise and programmes.
Harmonisation of efforts is therefore a direct and very constructive consequence of the
Protocol. This harmonisation should cover, among other issues: pricing mechanisms,
financial incentives, information and institutional arrangements, transfer of
technologies and cogeneration. The Secretariat is seeking to enhance international
co-operation on energy efficiency by broadening the number of participants in this
dialogue.
IV. RECENT DEVELOPMENTS
After the PEEREA became operational, the Energy Charter Conference developed
procedures to facilitate the monitoring of its implementation and to support countries
in implementing its provisions and identifying areas of co-operation. At the same
time, a Working Group on Energy Efficiency and related Environmental Aspects was
established. The Working Group meets regularly to address priorities, review
progress and discuss possible plans for action.
49
The Working Group has developed its activities into two areas:
• Reviewing progress in implementing the PEEREA and in improving energy
efficiency;
• Developing activities that support dialogue between member countries and
facilitate the implementation of the Protocol.
The review process relies on two complementary activities: regular reviews and
in-depth energy efficiency reviews:
• Regular reviews serve the purpose of monitoring the implementation of PEEREA.
They are based on an agreed format (comprising both quantitative and qualitative
information);
• In-depth energy efficiency reviews are completed on a peer basis, following a mission
to the host country, including representatives of several countries. Such indepth
reviews result in recommendations to the host government that are endorsed
by the Charter Conference. So far, Bulgaria, Hungary, Lithuania, Poland, the
Slovak Republic and Romania have hosted such reviews. Several other countries
have expressed their interest in becoming a host.
Activities supporting dialogue and facilitating implementation of the PEEREA
include: a brochure offering Advice on Developing an Energy Efficiency Strategy, a
Manual on Financing Mechanisms, a report on Fiscal and Taxation Policies for
improving Energy Efficiency and a report on Effects of Market Liberalisation on
Energy Efficiency. There is ongoing work on the issues of energy efficiency institutions
and third party financing mechanisms.
Under these circumstances, the PEEREA establishes a forum for the exchange of
ideas and policies, successes and failures in the area of energy efficiency and supports
governments in establishing new targets and programmes. The Protocol is expected to
play an important role in governments’ efforts to lower energy intensity. This will
support the international competitive position of countries, while efficient energy use
will, at the same time, improve the standard of living and the quality of the regional
and global environment.
50
G. DISPUTE RESOLUTION
SUMMARY
• The ECT includes various dispute settlement mechanisms, covering
disputes in the area of trade, investment, transit, competition and environ-
ment;
• The ECT’s provisions concerning trade disputes are based on the WTO
rules, while bilateral investment treaties are a model for the resolution of
investment disputes;
• The ECT contains novel dispute resolution systems concerning transit
(conciliation), competition (information and consultation), and
environment (review by Charter Conference).
I. INTRODUCTION
The ECT contains a fully-fledged system of international dispute resolution. These
provisions were developed because at the time when the Treaty was negotiated, some
CPs - in particular countries in transition - did not yet have a sufficiently developed
domestic juridical system. There was - and still is - concern about the neutrality,
professional competence and efficiency of domestic courts in these countries, and the
respect of the rule of law. By providing an alternative means of dispute resolution
before international tribunals, the ECT contributes to increasing confidence of
investors and traders, and promoting investment and trade flows between members.
This is of particular relevance in the energy sector, due to the fact that disputes may
often be very complex and involve huge amounts of money.
The ECT includes several international dispute resolution mechanisms, each of them
being designed to address a particular subject matter of the Treaty. The two basic
forms of binding dispute settlement are the following:
• State-state arbitration for basically all disputes arising under the ECT (Article 27),
except competition and environment (Articles 6 (7), 27 (2));
• Investor-state arbitration for investment disputes (Article 26).
Special provisions have been developed for the resolution of inter-state disputes in the
area of trade (Article 29, Annex D) and transit (Article 7). They derogate from the
51
otherwise applicable general provisions on state-to-state dispute settlement. As far as
competition (Article 6) and environment (Article 19) are concerned, the ECT does not
establish binding arbitration procedures, but provides for “softer” and less formal
dispute resolution mechanisms.
ECT negotiators did not want to “re-invent the wheel”. Therefore, as far as trade and
investment disputes are concerned, the ECT provisions are based on the model of the
WTO arbitration rules (for trade) and bilateral investment treaties (for investment). By
contrast, the ECT dispute resolution rules concerning transit, competition and
environment are new features, giving the Treaty a pioneer role in these areas.
In each case, the objective of international dispute settlement is not to favour
foreigners but to ensure an independent and neutral judicial forum. Overall, the ECT
offers a dispute settlement system that is unique in the international arena both for the
broad scope of covered issues (investment, trade, transit, competition and
environmental protection) and the number of countries having subscribed to it.
II. INVESTMENT DISPUTES
Articles 26 and 27 of the Treaty cover investments disputes. Article 26 deals with
disputes between an investor and a host country and Article 27 covers disputes
between States.
1. Investor-to-State disputes
Based on the model of bilateral investment agreements, Article 26 grants foreign
investors the right to sue the host country in case of “an alleged breach of an obligation
of the host State under Part III of the Treaty”, i.e. the provisions relating to investment
promotion and protection. By contrast, Article 26 does not apply to other disputes in
which a foreign investor might be involved. For instance, if a country fails to promote
the conditions for access of foreign investors to its capital markets, such investors
would not have access to dispute resolution under the Treaty, because the relevant
provision (Article 9) does not fall under Part III of the ECT.
The ECT dispute settlement mechanism has been invoked for the first time in April
2001, when a European investor sued a European country before the ICSID because of
an alleged breach of Article 13 (expropriation). The case was finally settled out of
court in December 2001.
52
a. Prior consultations
According to Article 26(1), disputes shall be settled, if possible, amicably. Both sides
have a period of three months for consultations.
b. Option between domestic and international dispute settlement
If consultations/negotiations fail, the foreign investor has three options where to submit
the dispute for resolution (Article 26 (2)):
• To the domestic courts or administrative tribunals of the host state to the dispute;
• To any applicable, previously agreed dispute settlement procedure, e.g. an arrangement
under bilateral investment treaties;
• To international arbitration.
c. Options between different international arbitration fora
If foreign investors choose to submit a dispute to international arbitration, they have
the choice between basically three alternative arbitration procedures (Article 26 (4)):
• The International Centre for the Settlement of Investment Disputes, Washington,
D.C., established by the ICSID Convention of 1965. This option is available if both
the home state of the investor and the host state are parties to the ICSID
Convention. Alternatively, the foreign investor may invoke the ICSID Additional
Facility Rules for the Administration of Proceedings by the Centre. These arbitration
rules are applicable where only either the home state of the investor or the host
state - but not both - is a party to the ICSID Convention;
• A sole arbitrator or an ad hoc arbitration tribunal established under the UNCITRAL
Arbitration Rules; or
• The Arbitration Institute of the Stockholm Chamber of Commerce.
There exist detailed procedural rules for all these arbitration proceedings, including
the establishment of tribunals, selection of arbitrators, hearings and costs.
d. State consent to international arbitration
According to Article 26 (3)(a), each CP gives its unconditional consent to the submission
of a dispute to international arbitration. However, there exist two exceptions to
this rule:
• Article 26 (3)(b) permits CPs listed in Annex ID to decline giving their unconditional
consent to the submission of a dispute to international arbitration where the
investor has previously submitted the dispute to another dispute resolution forum.
53
• Article 26 (3)(c) provides that CPs listed in Annex IA do not give their unconditional
consent to international arbitration in respect of disputes of alleged breaches
of the obligation in the last sentence of Article 10(1). The latter provision concerns
the observance of obligations under an individual investment contract between a
CP and an investor or investment of any other CP.
The original Annex ID lists 24 states 13 and Annex IA 4 states (Australia, Canada 14,
Hungary, Norway). These are relatively far-reaching exceptions, but they need to be
seen in the overall context of broad acceptance of the full scope of the investor-state
dispute resolution.
e. Applicable law and finality of awards
Regardless of which of the three above-mentioned basic options for international
arbitration is chosen, the dispute shall be decided in accordance with the provisions of
the Treaty and the rules and principles of international law (Article 26 (6)). The award
is binding and final and may include interest (Article 26 (8)).
Where disputes arise out of an act by a sub-national entity of the host country, Article
26 (8) further stipulates that the award may authorise the host state to pay monetary
damages in lieu of any other remedy. This provision ensures that the central government,
in cases where it lacks the authority to ensure compliance by a sub-national
entity, may discharge its obligation to comply with the award by a pecuniary payment.
f. Enforcement of arbitral awards
Pursuant to Article 26 (5)(b), an investor-state arbitration shall, at the request of any
party to the dispute, be held in a state that is a party to the United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York
Convention”). This Convention requires state parties to recognise and enforce within
their courts arbitral awards rendered in foreign states. Many of the parties to the “New
York Convention” have declared that they will enforce an arbitral award only if it is
rendered in a state that is also a party to the Convention. Thus, this provision permits
the investor to ensure that such states are obliged to enforce the award.
54
13
These countries are: Australia, Azerbaijan, Bulgaria, Canada, Croatia, Cyprus, the Czech Republic,
European Communities, Finland, Greece, Hungary, Ireland, Italy, Japan, Kazakhstan, Norway, Poland,
Portugal, Romania, the Russian Federation, Slovenia, Spain, Sweden, United States. From these countries,
Canada and the United States did not sign the Treaty.
14
Canada did not sign the ECT.
Article 26 (5)(b) also provides that claims are considered to arise out of commercial
relationship or transaction. This ensures enforceability under the New York
Convention - which is applicable only to such kind of disputes.
It should be noted that the ICSID Convention already requires that its parties recognise
and enforce ICSID arbitral awards. Therefore, if this option is chosen, the ICSID
awards will generally be enforceable in a large number of states even if the New York
Convention is, for some reason, inapplicable.
2. State-to-State disputes
In addition to investor-state dispute settlement, Article 27 of the ECT provides for
inter-state arbitration. Once again, this reflects the practice of bilateral investment
agreements.
In comparison with investor-to-state disputes under Article 26, the scope of inter-state
disputes is wide. It is, in principle, not limited to investment disputes but applies to the
application and interpretation of the Treaty as a whole - with very limited exceptions.
However, for various kinds of inter-state dispute resolution (e.g. trade disputes), the
ECT contains specific rules that derogate from the general provision of Article 27 (see
below).
Unlike the investor-to-state disputes, the parties to state-to-state disputes, after
exhausting attempts to settle them amicably, do not have a variety of alternative
means. According to Article 27 (2), disputes have to be submitted to an ad hoc
tribunal, subject to certain exceptions. For such disputes, the UNCITRAL rules shall
apply, unless there is an agreement to the contrary between the CPs.
Pursuant to Articles 27 (2), and 28, international arbitration is not available in the
following cases:
• Application or interpretation of competition and environmental issues (Articles 6
and 19);
• Observance of obligations under an individual investment contract against states
listed in Annex IA;
• Application or interpretation of trade-related matters (Article 29) or trade-related
investment matters (Article 5) unless both parties to the dispute agree otherwise.
The tribunal shall decide the dispute in accordance with the Treaty and applicable
rules and principles of international law. The arbitral award shall be final and binding.
Unless the parties to the dispute agree otherwise, the tribunal shall sit in The Hague,
and use the premises and facilities of the Permanent Court of Arbitration.
55
III. TRADE DISPUTES
In respect of trade-related disputes, Article 29 (7) of the Treaty provides for a dispute
resolution mechanism (Annex D) that is based on the GATT/WTO panel model. It
applies only in cases where at least one of the disputing parties is not a member of the
WTO. The ECT fulfils a unique role in this respect, because it makes a GATT/WTOlike
dispute settlement system available although not all parties to the dispute are
GATT/WTO members.
Disputes of an intra-GATT/WTO nature are to be resolved in the appropriate WTO
fora. This approach avoids a possible parallelism of dispute settlement procedures
concerning the same dispute (“forum shopping”).
As a general rule, dispute settlement under Article 29 (7) is a substitute for state-tostate
arbitration under Article 27 and investor-to-state arbitration under Article 26.
Nevertheless, according to Article 28 CPs have the right to submit a trade-related
dispute (including a dispute on trade-related investment matters (TRIMs)) to arbitration
under Article 27, provided that they both agree. Article 29 does likewise not exclude
that foreign investors bring actions relating to TRIMs under Article 26 (see Articles 5
and 10(11)). The different dispute resolution mechanisms reflect different international
approaches to the adjudication of disputes on investment and trade.
The ECT trade dispute resolution mechanism is lighter, less detailed and simpler than that
developed in the WTO. Accepting the trade regime of the Treaty may therefore be an
important interim step for non-WTO-ECT members towards membership in the WTO.
There are two main differences between the ECT approach and the WTO system:
• When a panel concludes that the disputed measure does not comply with the
Treaty, it may recommend that the offending party alter or abandon it. The panel’s
report is subject to adoption by the Charter Conference acting by a vote of 3/4 of
those present and voting, provided that at least a simple majority of all CPs to the
Treaty supports the decision. This is different from the WTO procedures where
panel reports are automatically adopted unless disapproved by consensus.
Therefore, the Treaty retains an element of political decision-making that could
serve as an additional incentive for mutually acceptable out-of-court resolutions of
trade-related disputes.
• There is no appellate body under the ECT rules.
The Charter Conference has to adopt a roaster of panellists. It shall contain persons
56
named for this purpose and persons who have served as panellists on GATT or WTO
dispute settlement panels. ECT panels shall take into account panel interpretations of
the WTO Agreement.
It is important to recall that the Treaty is not a “WTO mirror” and that it does not apply
to all trade disputes. In particular, it does not apply to any dispute that arises under an
agreement as described in Article XXIV of the GATT (relating to free trade area or
customs union) or under an agreement among States that were constituent parts of the
former Soviet Union (Article 29 (2b)).
IV. TRANSIT DISPUTES
An effective mechanism for the resolution of transit disputes is particularly important,
given the economic significance of energy transit and the fragility of transit security,
especially, but not exclusively, in CIS countries.
Article 7 (7) gives CPs the possibility to invoke a conciliation mechanism concerning
transit disputes. As compared to “normal” dispute settlement procedures under Article
27, conciliation might have the advantage of being faster and less formal. A CP being
party to the dispute may notify the dispute to the Secretary-General of the Secretariat
who shall consult with the interested parties and appoint a conciliator within 30 days.
If the conciliator fails to secure an agreement within ninety days, he/she shall recommend
a resolution or a procedure to achieve such resolution, and shall decide the
interim tariffs and other terms and conditions to be observed until the dispute is
resolved. Paragraph (7)(d) provides that the CPs “undertake to observe and ensure that
the entities under their control or jurisdiction observe” any interim decision of the
conciliator for twelve months, unless the dispute is resolved earlier. The conciliation
procedures may only be invoked after exhaustion of all other dispute resolution
remedies previously agreed between the CPs or entities concerned.
Article 7(6) provides that the transit state shall not, in the event of a dispute over “any
matter arising from that transit”, interrupt or reduce, or permit or require any entity to
interrupt or reduce, the existing flow of energy materials and products prior to the
conclusion of the conciliation mechanism set out in paragraph (7). There are only two
exceptions to this prohibition: where this is specifically permitted in the original contract
or agreement or allowed by the conciliator appointed to seek to resolve the dispute.
The Charter Conference has established ad hoc Rules concerning the conduct of
conciliation and the compensation of the conciliator.
57
V. COMPETITION DISPUTES
Article 6 (5) deals with the settlement of competition disputes. One important example
concerns disputes concerning state subsidies for energy companies.
Article 6 (5) reflects the fact that the ECT does not establish a common competition
regime between CPs 15. Rather, the ECT confirms the applicability of their domestic
competition rules. Consequently, Article 6 (5) establishes “only” a mutual information
and consultation mechanism in respect of the interpretation and application of
national competition laws.
If a CP considers that any specified anti-competitive conduct carried out in the
territory of another CP is adversely affecting an important interest concerning the
alleviation of market distortions and barriers to competition, it may notify the other
CP and request that the latter’s competition authorities initiate appropriate
enforcement action. The notified CP, or, as the case may be, its competition
authorities may consult with the competition authorities of the notifying CP and shall
accord full consideration to the request of the latter in deciding whether or not to
initiate enforcement action with respect to the alleged anti-competitive conduct. The
notified CP shall inform the notifying CP of the decision. In addition, CPs have the
possibility to resolve the dispute through diplomatic channels. Pursuant to Article 6
(7), no other means of dispute settlement are permitted.
VI. ENVIRONMENTAL DISPUTES
Article 19 contains various obligations of CPs with regard to the protection of the
environment16. According to Article 19 (2), the Charter Conference shall, at the
request of one or more CPs, review disputes concerning the application or interpretation
of these obligations, aiming at a solution. The Charter Conference therefore acts
as a consultative body that may make recommendations to the parties in dispute on
how to settle the case. However, this possibility only exists if arrangements for the
consideration of such disputes are not available in other appropriate international fora.
58
15
See also above the chapter on “Miscellaneous Provisions”, pages 34-35.
16
See above the chapter on “Miscellaneous Provisions”, pages 37-38.
H. ECT INSTITUTIONAL PROVISIONS,
CHARTER INSTRUMENTS, AND THE ECT
AS PART OF INTERNATIONAL LAW
SUMMARY
• The ECT has set up the Charter Conference as the highest institutional
body. There exist various working groups acting as subsidiary bodies;
• The Charter Conference is assisted by the Energy Charter Secretariat;
• The ECT includes a number of additional Instruments (annexes, decisions,
declarations, understandings);
• The ECT is an agreement in the meaning of the Vienna Convention on the
Law of Treaties.
I. INSTITUTIONAL ARRANGEMENTS
Part VII of the ECT deals with the structure of the Treaty and its institutions.
1. The Charter Conference and its subsidiary bodies
Article 34 of the ECT sets up the Charter Conference as the main institutional body
where the CPs regularly meet. Among the powers and functions given to the Charter
Conference are to:
• Carry out the duties assigned to it by the Treaty and its Protocols;
• Keep under review and facilitate the implementation of the principles of the
Charter and the provisions of the Treaty;
• Consider and approve the annual accounts and budget of the Secretariat;
• Encourage cooperative efforts aimed at facilitating and promoting market-oriented
reforms and the modernization of energy sectors in transition economies;
• Authorize and approve amendments to the Treaty, negotiations of accession and
association agreements, and the negotiations of new Declarations and Protocols
related to the Treaty;
• Appoint the Secretary General.
Furthermore, the Charter Conference has taken on specific tasks, such as developing
additional elements for the several dispute resolution mechanisms in the ECT, or
establishing procedures for the implementation of the PEEREA.
59
The Charter Conference combines the roles of a negotiation forum for the
development of new instruments mandated under the ECT, and an oversight body. It
also considers matters relating to the implementation of the Treaty, such as progress
towards ratification, requests for accession, review of transitional arrangements for
countries in transition, review of exceptions to national treatment, improvement of
transparency, etc.
The Charter Conference has established a number of subsidiary bodies to assist it in its
work. There are three subsidiary bodies that deal with the main areas of the Treaty:
• Energy Efficiency Group;
• Investment Group; and
• Trade Group;
In addition, there are two bodies with no regular schedule:
• Budget Committee;
• Legal Advisory Committee.
Finally, a special working group has been established for the negotiations on a Transit
Protocol.
2. The Charter Secretariat
According toArticle 35, a Secretariat assists the Charter Conference in carrying out its
duties. The Secretariat is located in Brussels, Belgium. Given the broad scope of the
ECT, it is small by international standards. This reflects the original intention of the
negotiators that the Charter Conference and the Secretariat should not duplicate the
work of other international organisations. As of 1 January 2002, the Secretariat
employs 29 persons, coming from 18 different countries. The objective is to have a
balanced representation of member states.
The main tasks of the Secretariat are the following:
• To prepare the meetings of the Charter Conference and its auxiliary bodies;
• To monitor and review the obligations of member countries under the ECT;
• To give advice on all matters related to the Treaty; and
• To establish and develop contacts with interested non-members.
3. Voting Rights
Article 36 of the ECT sets up a differentiated structure of voting rights, depending on
the subject matter on which a vote is taken. As a general rule, decisions provided for
60
in the Treaty shall be taken by a three-fourths majority of the CPs present and voting at
the meeting of the Charter Conference. However, no decision shall be valid unless it
has the support of a simple majority of the CPs. In each case, CPs shall make every
effort to reach agreement by consensus.
There are a number of issues for which unanimity is required. These include political
decisions of a fundamental character, such as amendments and accessions to the ECT,
as well as the conclusion of association agreements. The same applies for changes to
the Annexes of the Treaty or the approval of the Secretary General’s nominations of
panellists for trade disputes.
Decisions on budgetary matters shall be taken by a qualified majority of CPs whose
assessed contributions represent, in combination, at least three-fourths of the total
assessed contributions. Decisions concerning amendments of the functions of the
Charter Conference or the Secretariat require a three-fourths majority of the CPs.
4. Funding Principles
Pursuant to Article 37, each CP shall contribute to the annual budget of the
Organisation according to its capacity to pay. Annex B contains a formula for the
allocation of the Charter costs. Accordingly, contributions payable by CPs shall be
determined by the Secretariat annually on the basis of their percentage contributions
required under the latest available United Nations Regular Budget Scale of
Assessment. The contributions shall be adjusted as necessary to ensure that the total
of all CPs’ contributions is 100 per cent.
II. ADDITIONAL CHARTER INSTRUMENTS
In addition to its main provisions, the ECT includes a number of Annexes, Decisions,
Declarations and Understandings. All these instruments are recorded in the Final Act
of the European Energy Charter Conference - the multilateral conference that undertook
the negotiations and adopted the text of the Treaty. According to Article 48,
Annexes and Decisions are integral parts of the Treaty. Understandings and
Declarations are not a formal part of the Treaty but, as the Charter Conference made it
clear, are part of the overall political package when setting the conditions for
accession.
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1. Annexes
The original Treaty includes fourteen Annexes. They relate to a variety of issues, such
as the definition of covered energy materials and products, or transitional arrangements
for countries in transition. Some Annexes have a temporary nature and will disappear
over time. A complete list of the existing Annexes is attached in Annex 2.
2. Decisions
In addition to the Annexes, there are five Decisions with respect to the ECT. Three of
these Decisions cover “country-specific issues (in respect of Norway, Romania, and
the Russian Federation). Two Decisions relate to specific Articles and are important
in understanding the provisions on currency controls (Decision No. 3 with respect to
Article 14), regional economic integration organisations, customs unions and free
trade areas (Decision No.5 concerning Articles 24 (4)(a) and 25).
3. Understandings
In order to gain a complete picture of the Treaty package, it is necessary to also look
into the twenty-two Understandings agreed by negotiators and recorded in Part IV of
the Final Act. They provide guidance for the interpretation of various Treaty
provisions. For example, the Understandings confirm that the ECT does not include
an obligation to introduce mandatory third party access (Understanding Nr. 1), or
clarify what constitutes an economic activity in the energy sector (Understanding
No. 2).
4. Declarations
Finally, there are Declarations of the Charter Conference, states or groups of states,
recording individual views and positions about certain aspects of the Treaty.
According to Article 1 (13)(b) of the ECT, “declaration” means a non-binding instrument.
They appear in the Final Act (Part V and VI). There are also a few Declarations
that have been made outside the Final Act. They include the Chairman’s Statement at
the Adoption Session on 17 December 1994 and the Joint Memorandum of the
Delegations of the Russian Federation and the European Communities on Nuclear
Trade, made at the signature ceremony in Lisbon on 17 December 1994. Pursuant to
Article 33 (1), the Charter Conference may at any time authorise the negotiation of a
number of Energy Charter Protocols or Declarations in order to pursue the objectives
and principles of the Charter.
62
III. THE ECT AS PART OF INTERNATIONAL LAW
The ECT is an international agreement in the meaning of the Vienna Convention on
the Law of Treaties 1969. It establishes rights and obligations of CPs in a legally
binding manner.
In contrast to most international treaties, Article 45 expressly provides for its
provisional application prior to ratification by a CP, provided that such application is
not inconsistent with its internal legal order. However, according toArticle 45 (2), any
signatory has the right, when signing the agreement, to declare that it is not able to
accept provisional application. As of 1 January 2002, such declarations had been
made by Australia, Iceland, Japan, and Norway. Even in the case of exclusion of
provisional application, the institutional provisions of the ECT (e.g. on participation
in the Charter Conference, voting rights, budget) shall remain applicable, provided
that this is not inconsistent with the laws and regulations of the respective signatory.
According to Article 45 (2)(b), a signatory that does not apply the ECT provisionally and
investors of this signatory - may not claim the benefits of provisional application
by other signatories (principle of reciprocity).
Pursuant to Article 46, no reservations 17 may be made to this Treaty. According to
Article 47, each CP has the right to withdraw from the agreement at any time after five
years from the date on which the ECT has entered into force for this CP. Such withdrawal
shall become effective one year after the date of the receipt of the notification
of withdrawal by the Depositary. However, the Treaty protects existing investments of
foreign investors in the territory of the withdrawing CP for an additional period of
twenty years.
63
17
International law distinguishes between “reservations” and “exceptions”. While a reservation has the
effect that the other CPs may withhold the same advantage from the CP making the reservation, an exception
does not allow the other CPs to take such reciprocal measures.
I. CO-OPERATION WITH NON-MEMBER
COUNTRIES, FORMS OF PARTICIPATION
SUMMARY
• The Energy Charter Process is dynamic and open to non-members;
• There are several forms of cooperation, ranging from informal contacts
(e.g. seminars, workshops) to formal links (observership, association,
accession);
• Current outreach activities involve Mediterranean countries, China, ECO,
and APEC.
I. THE ENERGY CHARTER’S POLICIES VIS-À-VIS NON-MEMBERS
Given the fact that energy is an issue of global dimension, ECT member countries
attach great importance to co-operation with non-members. Accordingly, the Charter
Conference concluded in December 1999 that “further efforts to expand the Treaty’s
and the Protocol’s geographical coverage would be in the long-term interest of global
energy security”. It agreed that the Charter process should be open to any state or
regional economic organisation that expresses interest in the work.
The dynamism and openness towards non-members is demonstrated by the fact that a
considerable number of countries have obtained observer status in the Energy Charter
Process (see below). In addition, the Charter Process pursues specific outreach activities
with a focus on the following countries/regions:
1. Mediterranean countries
In 1995, the Euro-Mediterranean Partnership between the European Union and twelve
Mediterranean countries/regions 18 was launched. One of its goals is the association
of these states with the ECT. Among them, two (Malta, Turkey) are already CPs, and
another three (Algeria, Morocco and Tunisia) have obtained observer status. In particular,
Morocco and Tunisia show interest in a still closer involvement in the Charter
process. In order to increase the knowledge of the Charter process among
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18
Algeria, Cyprus, Egypt, Israel, Jordan, Lebanon, Malta, Morocco, the Palestinian Authority, Syria,
Tunisia and Turkey.
Euro-Mediterranean Partnership countries, the ECT and related documents have been
translated into the Arabic language as a part of the MEDA programme, which is
financed by the European Commission.
2. Economic Co-operation Organisation
Out of the ten ECO member countries 19, seven are also CPs of the ECT 20. In
February 2000, the ECO Regional Planning Council concluded to pursue its efforts in
establishing cooperation with international organisations that are active in the energy
sector, including the Energy Charter Conference. A joint ECO-ECS workshop on the
ECT was held in Turkey in January 2001. In particular, participants from Iran and
Pakistan expressed interest in future co-operation.
3. APEC
APEC is another important potential partner in the Energy Charter process. At the
21st meeting of the APEC Energy Working Group in Kuala Lumpur on 18-19 May
2001, the Energy Charter Secretariat informed participants about the Energy Charter
process, its goals and objectives, and the current work priorities. At its 22nd meeting
in Port Moresby, Papua New Guinea, on 27-28 September 2001, the APEC Energy
Working Group affirmed its interest in developing a dialogue with the Energy Charter
process on topics of mutual interest.
4. China
Against the background of its ever-growing importance in global energy matters, the
Charter Process seeks cooperation with the People’s Republic of China. First contacts
between the Chinese authorities and the Energy Charter Secretariat date back to 1997,
and lead to the organisation of a first “Seminar on the ECT and its Relation to China”
in June 1998. Another important event was the translation of the ECT into Chinese in
2000. A second symposium on the ECT, jointly organised by the Chinese State
Development Planning Commission and the Energy Charter Secretariat, was held in
July 2001 in Beijing. Following this event, the People’s Republic of China obtained
observer status in the Charter process on 17 December 2001.
65
19
Afghanistan, Azerbaijan, Iran, Kazakhstan, Kyrgzstan, Pakistan, Tajikistan, Turkey, Turkmenistan,
Uzbekistan.
20
ECT-Non members are Afghanistan, Iran and Pakistan.
II. FORMS OF PARTICIPATION IN THE ENERGY CHARTER PROCESS
The ECT offers various forms of participation in the Charter process. This flexibility
of the Treaty has the advantage that it allows for a tailor-made involvement of nonmembers,
taking into account their particular situation and their individual wishes.
1. Membership
With the entry into force of the Treaty/Protocol on 16 April 1998 after the 30th ratification
by signatories, the Charter Conference comprises the CPs, i.e. the states and
regional economic integration organisations that have ratified or acceded to the
Treaty/Protocol and for which it has entered into force (Article 1 (2)). As of 1 January
2002, 46 states (including the European Union) belong to this category.
Signatories - i.e. states that have not yet completed the ratification procedures - also
participate in the discussions of the Conference and all established bodies. As of 1
January 2002, signatories were Australia, Belarus, Iceland, Japan, Norway and the
Russian Federation.
Accession to the Treaty/Protocol means acquiring membership as a CP (Article 41).
Under international law it has the same status as ratification. The basic conditions for
accession are:
• The acceptance of:
• The principles and obligations embodied in the Energy Charter, the ECT and
related instruments;
• All decisions of the Charter Conference in effect at the time of deposit of the
instrument of accession to the Treaty/Protocol; and
• The provision of exhaustive information about the legislative situation and other
conditions for making business in the energy sector of the acceding state.
As of 1 January 2002, two countries have acceded to the Treaty/Protocol: The former
Yugoslav Republic of Macedonia and Mongolia. The Federal Republic ofYugoslavia
has initiated its accession process.
Detailed information about the various steps to follow during accession procedures is
included in Annex 3.
2. Observership
Observership is a “light” form of participation in the Charter process. It offers interested
non-members the possibility to become more familiar with the ECT, to establish
66
informal contacts with member countries and other observers, and to participate in the
international forum for energy dialogue established by the Treaty. Observers do not
have any obligations under the ECT; in particular they do not have to contribute to the
budget of the Organisation. Observership may be - but need not be - a transitional
phase towards full membership.
One can distinguish two categories of observers:
• The “minimal” form of observership is participation in the Charter Process without
any formal commitments. In this case, the Charter Conference may invite the
observer country to be represented at meetings of the Charter Conference or of its
subsidiary bodies without a right to vote.
As of 1 January 2002, such observer states include some Southern Mediterranean
countries (Algeria, Morocco, Tunisia), major oil producing countries from the
Middle East (Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab
Emirates), the People’s Republic of China and Venezuela. International organisations
with observer status are the: Baltic Sea Regional Energy Cooperation
(BASREC), Black Sea Economic Cooperation (BSEC), CIS Electric Power
Council, European Bank for Reconstruction and Development (EBRD), European
Investment Bank (EIB), International Atomic Energy Agency (IAEA),
International Energy Agency (IEA), Organisation for Economic Cooperation and
Development (OECD), UN-ECE and the World Bank.
• Second, there is the possibility to obtain a more advanced form of observership.
This requires that the observer country sign the European Energy Charter. By
signing the Charter, the observer country expresses its political will to support the
principles and goals of the Declaration. By contrast, adherence to the Charter does
not imply any legally binding commitments by the observer country. Such
obligations would only be established by joining the ECT itself.
Observer countries falling into this category may attend meeting of the Charter
Conference without a right to vote. They may likewise be invited to attend meetings
of the Conference’s subsidiary bodies without a right to vote. Moreover, such
observer countries may participate in the negotiations of new Charter Instruments.
As of 1 January 2002, observers with this status were Canada, the Federal Republic
ofYugoslavia and the United States.
The formal requirements for becoming an observer are simple and straightforward:
Any country interested in becoming an observer may submit a written request to the
Charter Secretariat. The Secretariat forwards the request to the Charter Conference
67
that takes the final decision. The main criterion for the Conference decision is whether
the granting of observership status would be in the mutual interest. This is normally
the case for requests from transition economies, energy producing countries and
energy transit countries.
3. Association agreements
Article 43 provides that the Charter Conference may authorize the negotiation of
association agreements in order to pursue the objectives and principles of the Energy
Charter and the provisions of the Treaty/Protocol. The concept of an association
agreement allows participation in the Charter process that falls somewhere between
the status of full membership and observership. As of 1 January 2002, no such
association agreement exists.
68
ANNEX 1
STATUS OF RATIFICATION OF THE ECT
(AS OF 1 JANUARY 2002)
I. CHARTER SIGNATORIES THAT HAVE DEPOSITED INSTRUMENTS
OF RATIFICATION/ACCESSION OF THE TREATY WITH THE
DEPOSITARY
11. on 12.07.1995 : GEORGIA
12. on 16.10.1995 : SLOVAKIA
13. on 15.01.1996 : LATVIA
14. on 12.03.1996 : UZBEKISTAN
15. on 17.06.1996 : CZECH REPUBLIC
16. on 22.06.1996 : MOLDOVA
17. on 06.08.1996 : KAZAKHSTAN
18. on 19.09.1996 : SWITZERLAND
19. on 15.11.1996 : BULGARIA
10. on 25.06.1997 : TAJIKISTAN
11. on 07.07.1997 : KYRGYZSTAN
12. on 17.07.1997 : TURKMENISTAN
13. on 12.08.1997 : ROMANIA
14. on 04.09.1997 : GREECE
15. on 10.09.1997 : SLOVENIA
16. on 27.11.1997 : LUXEMBOURG
17. on 09.12.1997 : CROATIA
18. on 12.12.1997 : LIECHTENSTEIN
19. on 16.12.1997 : AUSTRIA
20. on 16.12.1997 : DENMARK
21. on 16.12.1997 : FINLAND
22. on 16.12.1997 : GERMANY
23. on 16.12.1997 : ITALY
24. on 16.12.1997 : NETHERLANDS
25. on 16.12.1997 : PORTUGAL
26. on 16.12.1997 : SPAIN
27. on 16.12.1997 : SWEDEN
28. on 16.12.1997 : UNITED KINGDOM
29. on 16.12.1997 : EUROPEAN COMMUNITIES
30. on 23.12.1997 : AZERBAIJAN
69
31. on 16.01.1998 : CYPRUS
32. on 19.01.1998 : ARMENIA
33. on 12.02.1998 : ALBANIA
34. on 27.03.1998 : THE FORMERYUGOSLAV REPUBLIC OF MACEDONIA
35. on 08.04.1998: HUNGARY
36. on 04.05.1998: ESTONIA
37. on 08.05.1998: BELGIUM
38. on 14.09.1998: LITHUANIA
39. on 29.10.1998: UKRAINE
40. on 15.04.1999: IRELAND
41. on 28.09.1999: FRANCE
42. on 19.11.1999: MONGOLIA
43. on 05.04.2001: TURKEY
44. on 24.04.2001: POLAND
45. on 17.05.2001: BOSNIA AND HERZEGOVINA
46. on 10.07.2001: MALTA
II. CHARTER SIGNATORIES THAT HAVE NOT YET DEPOSITED
INSTRUMENTS OF RATIFICATION/ACCESSION OF THE TREATY
WITH THE DEPOSITARY
47. AUSTRALIA
48. BELARUS*
49. ICELAND
50. JAPAN
51. NORWAY
52. RUSSIAN FEDERATION*
* apply the Treaty provisionally
III. CHARTER SIGNATORIES THAT HAVE NOT (YET) SIGNED THE
ENERGY CHARTER TREATY
53. CANADA
54. REPUBLIC OFYUGOSLAVIA 21
55. UNITED STATES OF AMERICA
70
21
Process of Accession to the Treaty has started.
ANNEX 2
OVERVIEW OF THE ANNEXES TO THE ECT
The original Treaty includes fourteen Annexes. They relate to:
• Definition of covered energy materials and products (Annexes EM and NI);
• Special arrangements for notification and phase-out of trade-related investment
measures (Annex TRM);
• Lists of CPs that have accepted “voluntary commitments” in respect of investment
or limited their acceptance of certain aspects of the Treaty (Annexes VC, N, ID, IA
and PA);
• Special dispute resolution provisions for disputes involving sub-national entities
(Annex P);
• The scope of the interim trade regime for trade involving non-WTO members (nonapplication
of certain GATT and related instruments/WTO provisions) and the
relevant dispute settlement mechanism (Annexes G and D). Annex G has been
replaced by Annex W for the purpose of the ECT Trade Amendment 1998. The
latter has also modified Annex D.
• Trade agreements between states that were constituent parts of the former Soviet
Union (Annex TFU);
• Cost allocation formula in respect of the Conference (Annex B);
• Transitional arrangements for 24 countries in transition in respect of certain
obligations in the Treaty to allow these States to bring their laws and practices into
conformity with the Treaty (Annex T).
The Amendment to the Trade-Related Provisions of the ECT adopted by the Charter
Conference on 16 April 1998 added six new Annexes to the Treaty. The situation
concerning these Annexes may be described as follows (as of 1 January 2002):
ANNEX EM I AND EQ I
These Annexes list those items for which the trade provisions of the ECT apply.
Annex EM I replaces Annex EM in the original Treaty text.
ANNEX EM II AND EQ II
These Annexes do currently not contain any items. They relate to future binding
customs duty commitments for those items that may be included later.
71
ANNEX TRM
This Annex contained the dates for notifications and eliminations of possible TRIMs.
No such notification has been made, and since the transitional periods have lapsed,
this Annex is no longer applicable.
ANNEX TFU
States that were constituent parts of the former Union of Soviet Socialist Republics
have made no notifications within the set time limits. Therefore, the relevant exceptions
granted with regard to their internal trade relations did not materialise. This
Annex and the relevant provisions of the Treaty ceased to apply on 1 December 1999.
ANNEXES G (ANNEX W, AS ESTABLISHED BY THE TRADE AMENDMENT) AND
D
Article 29 of the ECT - which makes the GATT 1947 (or the WTO) provisions applicable
under the Treaty - will cease to apply when CPs to the ECT have become WTO
members. Currently, the following ECT CPs are not members of the WTO: Armenia,
Azerbaijan, Belarus, Bosnia and Herzegovina, Kazakhstan, the former Yugoslav
Republic of Macedonia, the Russian Federation, Tajikistan, Turkmenistan, Ukraine
and Uzbekistan.
ANNEX PA
This Annex was applicable only to Poland. However, Poland has completed its
ratification procedures. As a result, this Annex has ceased to apply.
ANNEX T
The ultimate deadline for termination of all transitional suspensions was 1 July 2001.
Therefore, Annex T has ceased to apply.
72
ANNEX 3
PROCEDURAL REQUIREMENTS FOR ACCESSION TO
THE ECT
Any State/Regional Economic Integration Organisation (“REIO”) wishing to accede
to the Treaty/Protocol has to undertake the following procedures:
1. The State/REIO has to present its application to the Charter Conference/Secretariat.
The application is distributed to all CPs for their individual opinions, to be subsequently
expressed in the collective decisions by the Conference.
2. If agreed by the CPs, the Charter Conference invites such State/REIO to sign the
European Energy Charter, and to initiate the accession process. The signature of the
Charter is a basic condition for accession to the Treaty/Protocol.
3. The Charter Conference then invites the Government of the Netherlands, as
Depositary of the Charter, to make appropriate arrangements for assisting such
State/REIO in the signature process.
4. After signature of the Charter, the Government of the Netherlands notifies the
Secretariat accordingly. From that date on, the State/REIO becomes an observer to the
Charter Conference, may attend its meetings and be invited by the Conference to
attend meetings of subsidiary bodies in the capacity of an observer.
5. Following signature of the Charter, the Secretary-General submits a letter to the
Government of the State/representative of the REIO specifying the requirements and
general conditions relating to the accession procedures. Subsequently, the Secretariat
submits to the Government of that State/representative of the REIO a set of basic documents
that are essential for the initiation of the accession process, and requests the
State/REIO to submit to the Secretariat a proposal for a schedule of consultations.
The basic condition for accession is the acceptance of the obligations contained in the
Treaty/Protocol and of all decisions of the provisional Charter Conference and the
Charter Conference in effect at the time of the deposit of the instrument of accession
to the Treaty/Protocol. The elaboration of additional supportive documents is
required based on clearly specified guidelines.
6. As a part of the consultation process, the State/REIO is requested to elaborate three
reports on the basis of the more detailed guidelines approved by the Charter
Conference at its 1999 December meeting:
73
a) Report on Harmonisation of Laws and Regulations with the Provisions of
the Treaty providing the description and analysis of the legislative situation
concerning Articles 3-15, 18-23, 26, 27 and 29 of the Treaty;
b) Report on Investment Climate and Exceptions to National Treatment,
addressing general investment policy issues, energy supply and demand,
market structure by sub-sectors, future development and investment needs
in each of the energy sub-sectors, issues of privatisation and monopolies,
general legislation relevant to investment, exceptions to national treatment
and plans for further liberalisation, etc.;
c) Report on Energy Efficiency, describing energy efficiency and environmental
policies and addressing all relevant issues contained in Articles 3-9
of the Protocol.
7. Based on the analysis of the Reports, and the input provided during the consultative
process, the Secretariat prepares a comprehensive report for the Charter Conference.
Provided that the basic accession requirements are met, the Conference invites the
State/REIO to accede subject to specific accession terms and conditions.
a) The basic condition for accession to the ECT involves the acceptance of the
obligations contained in the following documents:
i) The ECT, including theAnnexes to the Treaty set out inAnnex 1 and the
Decisions set out in Annex 2 to the Final Act of the European Energy
Charter Conference signed at Lisbon on 17 December 1994, which,
according to Article 48 of the Treaty, form an integral part of the Treaty;
ii) The Final Act of the European Energy Charter Conference of 17
December 1994, except section VII, taking due note of the Chairman’s
Statement at that time, which appears in Annex I to Document CONF
115 of 6 January 1995;
iii) The Amendment to Trade-Related Provisions of the ECT, including the
Decisions in connection with the adoption of this Amendment set out in
Annex 2 to the Final Act of the International Conference adopted in
Brussels on 24 April 1998;
iv) The Final Act of the International Conference and Decision by the
Conference in respect of the Amendment to the Trade-Related
Provisions of the ECT of 24 April 1998;
v) All Decisions and Conclusions of the Provisional Energy Charter
Conference and the Energy Charter Conference that shall be in force at
the time of the deposit of the instrument of accession.
74
b) The basic condition for accession to the Protocol involves the acceptance of
the obligations contained in the following documents:
i) The Energy Charter Protocol on Energy Efficiency and Related
Environmental Aspects;
ii) Section VII of the Final Act of the European Energy Charter
Conference of 17 December 1994;
iii) All Decisions and Conclusions of the Provisional Energy Charter
Conference and Energy Charter Conference relating to the Protocol that
shall be in force at the time of the deposit of the instrument of
accession.
c) Other conditions required to be fulfilled at the time of deposit of accession
instruments may, inter alia, include submission of:
i) A report summarising all laws, regulations or other measures relevant to
exceptions from the better of most favoured nation or national treatment
as regards the making of investments in its area and programmes under
which a State/REIO provides grants or other financial assistance, or
enters into contracts, for energy technology research and development;
ii) A list of all tariff rates and other charges levied on Energy Materials and
Products and Energy-Related Equipment at the time of their
importation or exportation as applicable on the date of accession;
iii) The designation of one or more enquiry points to which requests for
information about laws, regulations, judicial decisions and administrative
rulings may be addressed.
d) Additional requirements might specify that a State/REIO shall:
• Not make any declaration that might diminish its determination to
achieve the objectives of the Treaty and carry it out;
• Apply the Trade Amendment on a provisional basis with all rights and
obligations contained therein, pending the entry into force of the Trade
Amendment;
• Follow certain procedures with respect to the deposit of its ratification
instruments.
8. The invitation by the Charter Conference informing that a State/REIO may accede
to the Treaty/Protocol is officially announced through a letter by the SecretaryGeneral
to the Government of the State/representative of the REIO concerned. The
decision by the Conference, stating all terms and conditions that need to be fulfilled
75
by the State/REIO and that are integral parts of the internal ratification process, is
attached to this letter.
9. In response to the letter of the Secretary-General, the Government of the State/representative
of the REIO concerned submits a letter to the Secretary-General:
a) Reconfirming its intention to accede to the Treaty/Protocol;
b) Accepting the terms and conditions stated in the decision of the Charter
Conference.
10. The final stage of the accession process involves national ratification of the
Treaty/Protocol/Trade Amendment.
11. Once ratification is completed, the instrument of accession to the Treaty/Protocol
and the instrument of ratification of the Trade Amendment shall be deposited with the
Government of the Portuguese Republic (Depositary). Upon deposit of its instruments
of accession and ratification with the Depositary, a State/REIO submits simultaneously
all necessary information, or documents included in a Charter Conference decision, to
the Secretariat.
12. The Treaty shall enter into force for a State/REIO on the ninetieth day after the
date of deposit of its instrument of accession to the Treaty.
13. The Trade Amendment shall enter into force for a State/REIO on the ninetieth day
after the date of deposit of at least three-fourths of the CPs to the Treaty of their instruments
of ratification, acceptance or approval if the Amendment is not in force or on
the ninetieth day after the date of deposit of its instrument of ratification, acceptance
or approval if the Amendment has entered into force.
14. The Protocol shall enter into force for a State/REIO on the thirtieth day after the
date of deposit of its instrument of accession to the Protocol once such a State/REIO
has become a CP to the Treaty.
76
ANNEX 4
TASKS OF THE ECT SECRETARIAT IN THE TRADE
AREA
The main tasks of the Secretariat in the trade area can be summarised as follows:
• Notification procedures
Transparency is a key principle of the multilateral trading system. Notifications are
necessary to enable CPs monitoring their trade partners’ obligations under the ECT.
By abiding by their WTO-based notification obligations under the ECT, non-WTO
CPs develop their capacities and prepare themselves for future WTO membership.
Notifications to the Energy Charter Secretariat are in the public domain and may be
accessed at http://www.encharter.org. The ECT notifications may also help to provide
traders and investors with useful information and thereby contribute to a more transparent
and predictable trade environment.
The notification requirements are based on the relevant provisions of the WTO.
Notification formats are those of the WTO and review procedures mirror the relevant
WTO practice while avoiding duplication of work. Notification requirements concern
specific measures, procedures, applicable laws, rules, and administrative rulings of general
application, international treaties and the competent authorities on a variety of issues.
• Monitoring/review of measures triggered by notifications
Notifications or non-compliance with notification obligations may result in further
investigations, e.g. concerning balance of payments measures or consultations on
technical barriers to trade. Interested CPs, concerned with a particular aspect of trade
implementation, may drive many of these activities.
• Information on customs duties and other charges
The Secretariat collects notifications and disseminates information on customs duties
and other charges of any kind imposed on, or in connection with, importation or
exportation of Energy Materials and Products and Energy-Related Equipment and on
any changes to such duties or charges of any kind.
77
• Annual review on moving items to a legally binding tariff commitment
Such a review is based on background documentation containing compilation of
applied and bound tariff rates of any kind with respect to Energy Materials and
Products and Energy-Related Equipment, as well as of rates contained in official
offers submitted by non-WTO CPs in the context of WTO accession and requiring
listing in Annexes BR or BRQ.
If there is agreement on moving an item to a legally binding tariff commitment, a tariff
record will be drawn up in accordance with Annex W(B)(4) and (5) reflecting the
commitments under Article 29(6) and (7). It will be continuously updated with
respect to those CPs that are listed in Annexes BR or BRQ.
• Dispute settlement procedures
Interim Rules of Procedure for trade disputes have been elaborated in accordance with
Annex D (3)(a) of the ECT. In addition, the Charter Conference adopted a list of
panelists in accordance with Annex D (7).
The trade-related dispute settlement provisions of Annex D are similar, but not
identical with those under the WTO Understanding on Dispute Settlement (DSU).
Accordingly, the Secretariat will provide:
• The parties to the dispute, upon request, with technical assistance and
practical advice on the functioning of the dispute settlement procedure and
on applicable rules;
• The panels with practical assistance, including selection of the panelists,
the communication of dispute settlement cases, the compilation of the
factual material, and the drafting of the panel’s findings or the final report.
• Information exchange and co-operation with WTO and other institutions
The Secretariat maintains regular contacts with the WTO Secretariat concerning
information on interpretation or modifications/amendments of all WTO rules applicable
under the ECT, and other relevant institutions (e.g. UNCTAD, OECD, IEA, the
European Commission).
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INDEX
(INCLUDING THE NUMBER OF TREATY ARTICLES
DEALING WITH SPECIFIC ITEMS)
Access to capital - Article 9 - 36
Accession (to the ECT) - Article 41 - 66
Agreement on Agriculture - 15
Agreement on Textiles and Clothing - 15
Agreement on the Application of Sanitary and Phytosanitary Measures - 15
Amendment (of the ECT) - Article 42 - 59
Annexes (to the ECT) - 62
APEC - 65
Arbitration - Articles 26,27 - 51
Association (to the ECT) - Article 43 - 68
Baltic Sea Regional Energy Cooperation (BASREC) - 67
Best-efforts clause - 23
Bilateral investment treaties - 19, 52, 55
Black Sea Economic Cooperation (BSEC) - 67
“Blue Book” - 24
Budget Committee - 60
Budgetary matters - Article 37 - 59, 61
Charter Process - 7
China - 65
CIS countries - 14, 26, 32, 41, 57, 67
Cogeneration - 48
Compensation - Articles 12, 13 - 24, 25
Competition disputes - Article 6 - 58
Competition rules - Article 6 - 34, 35
Conciliation procedures - Article 7 (7) - 57
Co-operation with non-members - 64
Cost effectiveness principle - Article 19 - 44
Country examinations - 24
Customary international law - 29
Customs duties - Article 29 - 77
Customs union - Article 24 (4) - 34, 41, 57, 62
Decisions (related to the ECT) - 62
Declarations (related to the ECT) - 62
De-monopolisation - Understanding Nr. 10 - 23
79
Discrimination - Article 10 (2,7) - 22
Dispute settlement - Article 26-28 - 51
Domestic sales requirements - Article 5 - 16
Due process of law - Article 13 (1) - 24
Economic activity in the energy sector (definition) - Article 1 - 21
Economic Cooperation Organisation (ECO) - 65
Economic integration agreements - Article 25 - 42
Energy Charter Conference - Article 34 - 59, 60
Energy Charter Instruments - 61
Energy Charter Secretariat - Article 35 - 60
Energy Charter Treaty (as part of international law) - 63
Energy efficiency - Article 19 - 43
Energy Efficiency Group - 49, 50
Energy intensity - 43
Energy material (definition) - Article 1 - 21
Energy products (definition) - Article 1 - 21
Energy security - 33, 43, 64
Energy-related equipment - Article 31 - 13, 14, 15, 16
Enforcement of awards - Article 26 (8) - 54, 55
Environment - Article 19 - 37, 38
Environmental disputes - Article 19 - 58
European Bank for Reconstruction and Development (EBRD) - 67
European Energy Charter - 8, 11
European Investment Bank (EIB) - 67
Exceptions - Article 24 - 41
Expropriation - Article 13 - 24
Fair and equitable treatment - Article 10 (1) - 21, 22
Foreign exchange restrictions - Article 14 - 25, 26
Forum shopping - 56
Free trade area - Article 24 (4) - 41
Full-cost principle - 44
Funding - Article 37 - 61
GATS - 17
GATT - 12
“GATT by reference” - 12
Government procurement - 17
Grid bound energy transport - 30
Horizontal reviews - 24
ICSID - Article 26 - 53
80
Institutional arrangements - Articles 33-37 - 59
Intellectual property - Article 10 (10) - 22
International Atomic Energy Agency (IAEA) - 67
International Energy Agency (IEA) - 67
Investment (definition) - Article 1 - 20, 21
Investment contracts - Article 10 (1) - 26
Investment disputes - Articles 26, 27 - 52
Investment Group - 28
Investment protection - Articles 10-17 - 20
Key personnel - Article 11 - 26, 27
Legal Advisory Committee - 60
Local content requirements - Article 5 - 16
Mailbox Company - Article 17 - 27
Market rate of exchange - Article 14 - 25
Mediterranean countries - 64, 65
Membership (of the ECT) - 66
Model Agreements on Transit - 32, 33
Most-favoured nation treatment - Article 10 (3) - 22
National security - Article 24 (3) - 41
National sovereignty - Article 18 - 36, 37
National treatment - Article 10 (2) - 22
Nationalisation - Article 13 - 24
NewYork Convention - Article 26 (5) - 54, 55
Non-discrimination - Article 10 (3) - 22, 23, 24
Non-proliferation of nuclear weapons - Article 24 (3) - 41
Nuclear trade - 14
Observers (to the Charter process) - 66, 67, 68
OECD - 67
Participation in the Energy Charter process - 66
Peer pressure - 28
Permanent Court of Arbitration - Article 27 - 55
Political risk - 9, 19
Pre-establishment phase - Article 10 (2,4,5) - 23, 24
Privatisation - Understanding Nr. 10 - 23, 24
Protection from strife - Article 12 - 24, 25
Protocol on Energy Efficiency and Related Environmental Aspects (PEEREA) - 44
Provisional application (of the ECT) - Article 45 - 63
Public order - Article 24 (3) - 41
Research & development - Article 19 (1g) - 37
81
Rollback - Article 10 (5) - 23
Signatories (of the ECT) - Article 38 - 66
Soft law - 16
Sovereignty over natural resources - Article 18 - 36, 37
Standstill - Article 10 (6) - 23
State and privileged enterprises - Article 22 - 39, 40
Stockholm Chamber of Commerce - Article 26 (4) - 53
Sub-national authorities - Article 23 - 40, 41
Subrogation - Article 15 - 27
Supplementary Treaty - Article 10 (4) - 23
Sustainable development - Article 19 - 7, 37, 43
Taxation - Article 21 - 38, 39
Third party access - Understanding Nr. 1b - 29, 32
Trade - Articles 5, 29 - 12
Trade Amendment - 14
Trade disputes - Article 29 (7) - 56, 57
Trade Group - 60
Trade in services - 17
Trade-related investment measures - Article 5 - 16, 17, 55
Transfer of funds - Article 14 - 25, 26
Transfer of technology - Article 8 - 35
Transit - Article 7 - 29
Transit (definition) - Article 7 (10) - 29
Transit disputes - Article 7 (7) - 57
Transit Protocol - 31
Transitional arrangements - Article 32 - 41
Transparency - Article 20 - 38, 39
UNCITRAL Arbitration Rules - Articles 26,27 - 53
Understandings (related to the ECT) - 62
Uruguay Round - 12, 34
Vienna Convention on the Law of Treaties - 63
Voting rights - Article 36 - 60, 61
World Bank - 67
WTO - 12 - 18, 31, 56, 57
“WTO by reference” - 12
82