Investment Governance between the Energy Charter Treaty and the European Union

Ottavio Quirico, Ph.D., University of Social Sciences, Toulouse, France, is Associate Professor in the School of Law, University of New England, Australia; Adjunct Lecturer at the Centre for European Studies, Australian National University; and Alumnus of the European University Institute.

Cases

Documents

List of Abbreviations



Introduction



1 The Energy Charter Treaty, Investment and the Energy Charter Process

 1.1 The Energy Charter Process: From the (European) Energy Charter to the Energy Charter Treaty

 1.2 The Energy Charter Treaty: An Overview, with a Focus on Investment

  1.2.1 Substantive Provisions

  1.2.2 Dispute Settlement

  1.2.3 Applicable Law

 1.3 Provisional Application of the ECT

 1.4 The International Energy Charter and the Modernisation of the Energy Charter Treaty

 1.4.1 Investing in Carbon-neutral Energy under the UNFCCC Regime: The European Green Deal

 1.4.2 Reforming Investor-State Dispute Settlement

 1.4.3 Implementing Climate-friendly Investment Policies under the Energy Charter Treaty

 1.4.4 Reforming the Energy Charter Treaty



2 The Energy Charter Treaty and European Union Law: Investment Conflicts

 2.1 Conflicts of Laws in Investment Disputes

 2.2 Conflicts between EU law and Investment Agreements

  2.2.1 Intra-EU Investment Agreements

   2.2.1.1 The Conflictual Stance of the European Commission and Investment Tribunals

   2.2.1.2 The Stance of the Court of Justice of the European Union: Achmea

  2.2.2 Extra-EU Investment Agreements

 2.3 Conflicts between the Energy Charter Treaty and EU Law

  2.3.1 Intra-EU ECT Relations

  2.3.2 Extra-EU ECT Relations

  2.3.3 ECT Implications of the Achmea Decision

 2.4 Scope of the Conflict

  2.4.1 The Sources of EU Law and Their Effects

  2.4.2 The Hierarchy of the Sources of EU Law and the Energy Charter Treaty: An Internal Perspective

  2.4.3 An External Viewpoint on the Relationship between EU Law and the Energy Charter Treaty: International Law and EU Law

 2.5 Content of the Conflict: The Centrality of Climate-friendly Investment

  2.5.1 Fair and Equitable Treatment

  2.5.2 Expropriation

  2.5.3 Public Interest and Environmental Protection

  2.5.4 Compensation

  2.5.5 Adjudication

 2.6 The Problems of Uncertainty



3 Resolving Conflicts: Modernising the Energy Charter Treaty

 3.1 Dividing Responsibility between the EU and Its Member States under the Energy Charter Treaty

 3.2 Terminating or Suspending the Energy Charter Treaty via the TEU and TEFU as Subsequent Treaties? Article 59 of the VCLT and VCLTIO

 3.3 Carving Intra-EU Relations out of the Energy Charter Treaty?

  3.3.1 An ECT Disconnection Clause?

  3.3.2 Procedural Carve-out?

  3.3.3 Disconnecting Intra-EU ECT Relations via an Express Agreement? Article 41 of the VCLT and VCLTIO

 3.4 Substantive Priority

  3.4.1 Harmonious Interpretation: Article 31(3)(c) of the VCLT and VCLTIO

  3.4.2 Hierarchy (Lex Superior) and Conflicts of Supremacy

  3.4.3 Speciality (Lex Specialis)

  3.4.4 Inter-temporality (Lex Posterior): Article 30 of the VCLT and VCLTIO

  3.4.5 Provisional Application of the Energy Charter Treaty under Article 45 as a Conflict Rule

 3.5 Procedural Implications

  3.5.1 Adjudication under the Energy Charter Treaty and Non-EU Jurisdictions: TFEU Articles 267 and 344

   3.5.1.1 The Stance of the Arbitral Tribunal in Vattenfall

   3.5.1.2 The Views of the Arbitral Tribunal in Landesbank Baden-Württemberg

   3.5.1.3 Resolving Jurisdictional Conflicts in Light of Conflict Rules under Public International Law

  3.5.2 Enforcing Decisions under the Energy Charter Treaty in the EU: Impediments

 3.6 Negotiating a Modernised Energy Charter Treaty



Conclusion



Chronology

Bibliography

Index