Commentary on the Energy Charter Treaty

9781788117487 Edward Elgar Publishing

Edited by Rafael Leal-Arcas, Jean Monnet Chaired Professor of International Economic Law (awarded by the European Commission), Professor of European and International Economic Law and Director of Research, Alfaisal University, Saudi Arabia and formerly Visiting Professor, Singapore Management University School of Law, Singapore, New York University Abu Dhabi, and Sorbonne University Abu Dhabi, UAE. His work has been cited by United States District Courts and scientific bodies such as the Intergovernmental Panel on Climate Change.

Publication Date: December 2018 ISBN: 978 1 78811 748 7 Extent: 584 pp

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Critical Acclaim

Contributors

Contents

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The Commentary on the Energy Charter Treaty (ECT) provides a unique, article-by-article, textual analysis of this important international agreement. The ECT outlines a multilateral framework for cross-border cooperation in the energy sector based on the principles of open competitive markets and sustainable development.

By binding governments to commitments that guarantee open markets, non-discrimination, and access to foreign investment, the ECT aims to strengthen the global rule of law on energy issues and, in doing so, reduce the risks associated with energy-related investment and trade.

Expert contributors provide commentary and analysis on the five primary areas of the ECT: investment promotion and protection, trade, transit, environmental protection, and dispute settlement. The optional protocols are also addressed, including issues such as energy efficiency and the environment.

Clearly and logically organized, this commentary is an invaluable reference tool for those wanting to better understand the intricacies of the Treaty and its binding commitments. The Commentary will be an essential resource for practitioners, academics, and policymakers across the field of energy law and policy.

Critical Acclaim

‘The very first in-depth, article-by-article commentary on all aspects of the ECT. . . The volume is edited by Rafael Leal-Arcas who successfully assembled a group of experts with different backgrounds in trade law, energy, investment law and arbitration. Together they created a work of great quality. . . . the volume offers a clear and comprehensive discussion of the complete content of the treaty, considering relevant arbitral awards and academic writings. it provides expert analysis, often from different perspectives as well as historical context.’
– European Energy and Environmental Law Review

Contributors

Contributors: V. Aleksic, G. Alvarez, C. Baltag, M. Baumgart, L. Borlini, A. Eckenroth, D. Geraets, S. Goldberg, C. Grasso, T. Hunter, A. Konoplyanik, R. Leal-Arcas, N. Lisney, D. Mejia-Lemos, B.H. Melgar, F. Montanaro, A. Morelli, A. Mudliar, M. Petri, L. Reins, O. Repousis, P. Serra, F.D. Simões, C.G. Stănescu, P. Vajda

Contents

Contents:

Introduction
Rafael Leal-Arcas

Preamble
Antonio Morelli

PART I DEFINITION AND PURPOSE
Article 1 Definitions
Dylan Geraets and Leonie Reins

Article 2 Purpose of the Treaty
Leonie Reins

PART II COMMERCE
Article 3 International markets
Pierre Serra

Article 4 Non-derogation from WTO Agreement
Pierre Serra

Article 5 Trade-related investment measures
Pierre Serra

Article 6 Competition
Pierre Serra

Article 7 Transit
Cătălin Gabriel Stănescu

Article 8 Transfer of technology
Beatriz Huarte Melgar

Article 9 Access to capital
Beatriz Huarte Melgar

PART III INVESTMENT PROMOTION AND PROTECTION
Article 10 Promotion, protection and treatment of investments
Diego Mejía-Lemos

Article 11 Key personnel
Diego Mejía-Lemos

Article 12 Compensation for losses
Diego Mejía-Lemos

Article 13 Expropriation
Diego Mejía-Lemos

Article 14 Transfers related to investments
Francesco Montanaro

Article 15 Subrogation
Apurva Mudliar

Article 16 Relation to other agreements
Francesco Montanaro

Article 17 Non-application of Part III in certain circumstances
Apurva Mudliar

PART IV MISCELLANEOUS PROVISIONS
Article 18 Sovereignty over energy resources
Peter Vajda and Varvara Aleksić
Tina Hunter

Article 19 Environmental aspects
Peter Vajda and Varvara Aleksić
Tina Hunter

Article 20 Transparency
Gloria Alvarez

Article 21 Taxation
Gloria Alvarez

Article 22 State and privileged enterprises
Costantino Grasso
Tina Hunter

Article 23 Observance by sub-national authorities
Costantino Grasso

Article 24 Exceptions
Costantino Grasso
Gloria Alvarez

Article 25 Economic Integration Agreements
Costantino Grasso
Gloria Alvarez

PART V DISPUTE SETTLEMENT
Article 26 Settlement of disputes between an investor and a contracting party
Fernando Dias Simões

Article 27 Settlement of disputes between contracting parties
Crina Baltag

Article 28 Exclusion of certain provisions of the ECT from the settlement of disputes between contracting parties
Crina Baltag

PART VI TRANSITIONAL PROVISIONS
Article 29 Interim provisions on trade-related matters
Max Baumgart

Article 30 Developments in international trading arrangements
Silke Goldberg, Naomi Lisney and Anne Eckenroth

Article 31 Energy-related equipment
Silke Goldberg, Naomi Lisney and Anne Eckenroth

Article 32 Transitional arrangements
Silke Goldberg, Naomi Lisney and Anne Eckenroth

PART VII STRUCTURE AND INSTITUTIONS
Article 33 Energy Charter Protocols and Declarations
Silke Goldberg, Naomi Lisney and Anne Eckenroth

Article 34 Energy Charter Conference
Cătălin Gabriel Stănescu

Article 35 Secretariat
Cătălin Gabriel Stănescu

Article 36 Voting
Cătălin Gabriel Stănescu

Article 37 Funding principles
Cătălin Gabriel Stănescu

PART VIII FINAL PROVISIONS
Article 38 Signature
Odysseas G. Repousis

Article 39 Ratification, acceptance or approval
Odysseas G. Repousis

Article 40 Application to territories
Odysseas G. Repousis

Article 41 Accession
Odysseas G. Repousis

Article 42 Amendments
Antonio Morelli

Article 43 Association agreements
Antonio Morelli

Article 44 Entry into force
Antonio Morelli

Article 45 Provisional application
Antonio Morelli

Article 46 Reservations
Antonio Morelli

Article 47 Withdrawal
Antonio Morelli

Article 48 Status of Annexes and Decisions
Leonardo Borlini and Marina Petri

Article 49 Depositary
Leonardo Borlini and Marina Petri

Article 50 Authentic texts
Leonardo Borlini and Marina Petri

Appendix: Gas transit in Eurasia: transit issues between Russia and the European Union and the role of the Energy Charter
Andrey A. Konoplyanik

Index