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COMMENTARY ON THE ENERGY CHARTER TREATY

RAFAEL LEAL-ARCAS

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.
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ARTICLE 23: OBSERVANCE BY SUB-NATIONAL AUTHORITIES

Costantino Grasso

Extract

This chapter offers a commentary to Article 23 of the Energy Charter Treaty, which establishes a criterion of attribution of liability in relation to the commercial operations carried out by regional or sub-regional authorities. Especially, it explains that the Member States have to ensure that all their sub-national authorities act in accordance with the treaty and how such a duty implies that, where a regional or local authority violates the rules set out by the treaty, the Member State that exerts control over it shall be deemed responsible for those activities. The chapter then illustrates the difficulties faced by the Contracting Parties in regulating this matter due to the impossibility of relying on the various domestic constitutional and administrative sources of law. The author also highlights the complexity concerning the establishment of a conventional definition of terms like ‘region’ and ‘territory,’ which bear a variety of meanings in the different historical traditions of the Member States. In that regard, the chapter illustrates the Nomenclature of Territorial Units for Statistics (NUTS) system used by the European Commission, which represents a heterogeneous aggregation of national administrative units.

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