Call for Papers: TDM Special Issue on the “Modernisation of the Energy Charter Treaty (ECT)”
12 July 2018
Freya Baetens, Ilija Mitrev Penusliski, Martins Paparinskis, and John Gaffney invite you to contribute to a Transnational Dispute Management (TDM, ISSN 1875-4120, www.transnational-dispute-management.com) Special Issue on the "Modernisation of the Energy Charter Treaty (ECT)."
The ECT provides a multilateral framework for energy cooperation that is unique under international law. It is a binding multilateral agreement designed to promote energy security through the operation of more open and competitive energy markets, while respecting the principles of sustainable development and sovereignty over energy resources. The ECT's core areas of cooperation are investment, trade, transit, energy efficiency and dispute resolution.
The ECT was signed in December 1994 and entered into force in April 1998. Currently there are fifty-three Signatories and Contracting Parties to the Treaty. This includes both the European Union and Euratom.
Under the auspices of the Energy Charter Conference, the Parties to the ECT meet regularly to consider both the implementation and the improvement of the ECT. Since 2015, and in line with global trends in the fields of investment and trade, the ECT members have been focusing on the 'modernisation' of the ECT.
The first phase of modernisation of the Energy Charter Process was finalised successfully in 2015 with the adoption of the International Energy Charter (which updated the initial political declaration signed in 1991). Today, 87 countries and international organisations have signed it.
The next step in the modernisation process is to consider the potential need and/or usefulness of updating, clarifying or modernising the ECT. In January 2017, several experts from the industry, governments, legal circles and academics (in addition to officials from UNCITRAL and UNCTAD) discussed the investment protection standards under the ECT, concluding that some particular issues could benefit from additional clarification. Later in the year, contracting Parties and Signatories also analysed and considered current investment policy tendencies incorporated in international investment agreements.
At its 28th Meeting held on 28-29 November 2017, the Energy Charter Conference approved the timeline for the discussion on modernisation during 2018 (energycharter.org/who-we-are/subsidiary-bodies/strategy-group/subgroup-on-modernisation/) and agreed on a set of topics to be reviewed as part of its discussion, the details of which are set forth in the Annex to this call for papers.
The co-editors invite you to contribute to the special edition on the modernization of the ECT with unpublished articles, conference papers, research papers and case studies dealing with the ECT and the issues raised by any of its chapters. Of particular interest are contributions in the following areas:
- The protection of foreign investments;
- International trade in energy materials, products and energy-related equipment;
- Energy transportation or transmission rights and obligations, and related dispute resolution mechanisms;
- The resolution of disputes between participating states, and - in the case of investments - between investors and host states
Paper proposals (which should not exceed two pages) should be submitted directly to email@example.com. Please CC firstname.lastname@example.org when submitting your materials. The call for papers can also be found on the TDM website www.transnational-dispute-management.com/news.asp?key=1713
The full and final version of the selected papers is due on 30 November 2018.
Multiple proposals per applicant will be considered, but each applicant will be invited to contribute one paper at most.
We welcome papers from practitioners as well as academics and we also encourage authors who are in the early stages of their careers to submit a proposal.
Please feel free to circulate this call for papers amongst friends, colleagues and other people who you think may have an interest in this topic.
Prof. dr. Freya Baetens
University of Oslo, Norway
Ilija Mitrev Penusliski
Shearman & Sterling, Paris, France
Dr. Martins Paparinskis
University College London, UK
Al Tamimi, Abu Dhabi
(New approaches included in recent IIAs)
- Preamble: there is a trend in some recent IIAs to provide further context to the disciplines by referring to other public policy interests (such as sustainable development, transparency, environmental and labour standards as well as universal values as human rights).
- Covered investments, Article 1(6): Some recent IIAs require covered investments to fulfil specific characteristics (such as commitment of capital, an effective contribution to the host State's economy, and a certain duration) and/or include a legality requirement (compliance with domestic laws, including anticorruption/bribery regulations). In addition, ECT annexes on energy products and materials could be updated and the definition of 'economic activity in the energy sector' (which is relevant to the type of covered investments under the ECT) could be clarified.
- Covered investors, Article 1(7): Some recent IIAs include additional criteria for the definition of covered investors (a company must have its "seat" and engage in "real/substantial business" activities in the home State, exclusion of individuals with dual nationality -including that of the host State-, exclusion of investors whose ultimate beneficiary is a national of the host State).
- Protection of pre-investment: currently ECT Article 10(4-6) only provides voluntary soft commitments regarding pre-investment and the obligation to negotiate the supplementary treaty to cover pre-investment. Several recent IIAs include preinvestment with or without being subject to the dispute resolution mechanisms (either investor-State or State-State).
- Fair and Equitable Treatment (FET), Article 10(1): some IIAs qualify the FET standard by reference to the minimum standard of treatment of aliens under customary international law. There is also a trend either to state the FET standard through an open-ended list of FET obligations or to replace the general FET clause with an exhaustive list of what the Parties would consider as breaching the standard.
- Most Constant Protection and Security, Article 10(1): the trend is to state that it refers only to physical security.
- Umbrella clause, Article 10(1): whereas the ECT contains a broad unqualified clause (but providing also the possibility of exclusion from dispute settlement), some new IIAs state that the clause covers only "written commitments" or that the obligations must be "entered into" with respect to specific investments. Other state that the umbrella clause cannot be used to bypass specific contractual dispute settlement mechanisms.
- Most Favoured Nation (MFN), Article 10(7): Some new IIAs state that the MFN obligation requires comparison of investors/investments that are "in like circumstances" or "like situations" and may include criteria for such comparison.
- National Treatment (NT), Article 10(7): Some recent IIAs state that the NT standard applies only to investors/investments "in like circumstances" or "like situations", and may set out criteria for comparison.
- Compensation for Losses, Article 12: Several IIAs contain rules on standard of compensation and calculation of compensation, to be based on fair market value (going as far as suggesting the use of certain valuation criteria).
- Protection against unlawful expropriation, Article 13: Most of new IIAs establish specific criteria for indirect expropriation, including what does not constitute indirect expropriation. There are some other IIAs that omit a reference to, or explicitly exclude, indirect expropriation from their scope.
- Transfers related to investments, Article 14: some IIAs include an exception for serious balance-of-payments difficulties, temporary safeguard measures taken for monetary or exchange rate policy, or prudential measures taken to ensure stability of financial system and situation of economic crises.
- Regarding State's rights to regulate: a number of recent IIAs include an operational article on the State's right to regulate to achieve legitimate policy objectives (in some cases such article includes a non-stabilisation clause or other clarifications).
- Denial of benefits, Article 17: some IIAs specify that the denial of benefits clause can also be invoked once Investment proceedings have started.
- Article 20, transparency: Under article 20 ECT, judicial decisions and administrative rulings of general application made effective by Contracting Parties must be published promptly. Article 27 of the ECT requires states to communicate to the Secretariat the arbitral award in a State-State dispute, but no transparency requirement exists under the ECT regarding investment disputes. On the contrary, many recent IIAs include an obligation to apply UNCITRAL rules on transparency.
- Treaty interpretation: Recent IIAs establish mechanisms (eg. Joint Committee) for binding joint interpretations. Some IIAs also allow interpretations by non-disputing Parties.
- Prevention of frivolous claims: some IIAs allow the respondent to file a preliminary objection that a claim is manifestly without legal merits (similar to ICSID arbitration rules but inexistent under UNCITRAL or SCC rules); and to address the issue of unfounded claims as a matter of law.
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