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  • Author or Editor: Odysseas G. Repousis x
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Odysseas G. Repousis

Article 41 deals with accession to the Energy Charter Treaty. Specifically, unlike Article 38 (signature), Article 41 only applies to States and Regional Economic Integration Organizations that accede to the Energy Charter Treaty after 16 June 1995 (see Art 38). These parties may therefore become Contracting Parties to the Energy Charter Treaty without prior signature. However, instruments of accession must be deposited with the depositary. In all accession cases, prior approval of the Energy Charter Conference is required.

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Odysseas G. Repousis

Article 38 of the Energy Charter Treaty deals with signature. The ECT could be signed and acceded to only by States and Regional Economic Integration Organizations which had signed the Energy Charter on 17 December 1991; and was actually open for signature only to these States and REIOs for a prescribed interval of time (17 December 1994 to 16 June 1995), after which, new States or REIOs have to accede to the Energy Charter Treaty in accordance with Article 41. That said, Article 38 continues to apply to successor States, that is States that succeeded a prior signatory to the Energy Charter Treaty.

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Odysseas G. Repousis

Article 39 of the Energy Charter Treaty (along with Arts 41 and 44) sets out the rules for the Energy Charter Treaty’s regular entry into force, which may be done through ratification, acceptance or approval. Article 39 should be read together with Article 49, which designates the Government of the Portuguese Republic as the Energy Charter Treaty’s depositary. That depositary receives all instruments of ratification, acceptance or approval, territorial declarations under Article 40, notices on provisional application under Article 45 and any notices of withdrawal in accordance with Article 47.

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Odysseas G. Repousis

Article 40 of the Energy Charter Treaty (along with Art 1(10)), determines the territorial scope of the Energy Charter Treaty. Specifically, Article 40 governs territorial declarations, namely declarations according to which Contracting Parties consent to apply the Energy Charter Treaty to certain (usually overseas) territories. In fact, the territorial coverage of the Energy Charter Treaty is important in at least two specific respects. First, it delimits those areas where the Energy Charter Treaty applies. Second, since the overseas territories of certain Energy Charter Treaty Contracting Parties constitute separate jurisdictions that also have separate corporate registries, it also helps determine the scope of covered investors. Moreover, Article 40, when read in conjunction with Article 45 (that governs provisional application), raises interesting questions, inasmuch as it is not entirely clear whether the Energy Charter Treaty continues to apply to Gibraltar, a territory to which it was provisionally applied, but which territory was not included in the United Kingdom’s instrument of ratification.