This chapter provides a fine-grained analysis of the ECT Article 3 dedicated to ‘International Markets’. It details the dual obligation embodied by the wording of the provision: openness and competitiveness. Pursuant to this article, parties to the Charter must promote market openness as well as competition. The scope of these obligations is circumscribed to the energy sector as defined by the pertaining annexes to the Charter. Those annexes define the exact products and equipment that must be subject to alleviated trade and non-trade barriers and competition. This provision and the present commentary must be read in parallel to the Annex W.
This chapter contextualizes the trade regime defined by the Energy Charter Treaty. Designed to foster market openness in the field of energy for non-WTO countries, the ECT applies to countries which are WTO members and non-WTO members. Aiming at acclimatizing non-WTO countries to free trade, the Charter’s trade regime is alleviated and distinct from the WTO one. However, Article 4 closes the loop for WTO parties which are bound to the ECT. The formers cannot derogate from their WTO obligations on the basis of the Charter’s trade regime. Whence, the ECT does not affect trade interactions between WTO parties. Hence, this provision allows to the determine which trade regime applies – depending on the parties interacting with each other.
The present chapter details the ad hoc regime for trade-related investment measures of the Energy Charter Regime. The Energy Charter entails a bespoke trade regime which is inspired from the WTO architecture. However, it precludes some WTO treaties from its regime pursuant to Annex W to the Charter. Among those excluded agreements is the Agreement on TRIMs. Yet, the article 5 of the ECT transposes the content of this agreement in the main body of the Charter. This transposition is however not perfectly symmetrical. It therefore raises some issues about the clarity of obligations and exceptions available to the parties to the Charter. This question is all the more crucial that both WTO parties and non-WTO parties are subject to this article.
This chapter comments the provision dedicated to competition in the Energy Charter Treaty. It analyses the content and the strength of the obligation arising from this article. The latter does not provide a common competition regime per se for the signatory parties. It also discusses the limited dispute settlement means available to the parties. Most of paragraphs encapsulated by the provision emphasize cooperation between the parties – especially between parties with experience in competition and those with little or none.