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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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INDEX

Abbott, K. 48.11

aboriginal peoples 24.03, 24.15

access

commercial access methods and sovereignty over energy resources 18.06

technology see technology transfer

transit of goods see transit of goods

access to capital 9.01–41

access to public credits, guarantees and insurance for investors 9.08, 9.13–14, 9.31, 9.33

acknowledgement of the importance of open capital markets 9.23–5

best efforts clause 9.01, 9.20, 9.22, 9.28, 9.40

borrowing of funds and the insurance and sale of equity shares and other securities 9.05, 9.08, 9.13–14, 9.16, 9.19, 9.38

energy cooperation 9.03, 9.35

energy trade 9.03, 9.19–20, 9.23, 9.27, 9.29, 9.31, 9.33, 9.41

environmental protection and energy efficiency 9.30, 9.36–7

exceptions 9.21–2

exchange rates 9.03, 14.06, 14.08, 37.04

expertise of relevant international financial institutions 9.05, 9.06, 9.08, 9.13, 9.14, 9.16, 9.35

facilitating trade or investment abroad 9.31–4

financial system and capital markets 9.05, 9.14, 9.16, 9.38–9

free trade market and fair competition 9.02, 9.19, 9.34, 9.37

implementation of programmes 9.35–7

interim trade arrangements and economies in transition 9.21–2, 9.24–5

market principles and lending practices 9.08, 9.38

measures for prudential reasons 9.05, 9.06, 9.14, 9.15, 9.16, 9.38, 9.39

most-favoured-nation (MFN) treatment 9.06, 9.28

non-discrimination principle 9.19–20, 9.26–9, 9.32

obligation to promote conditions for access to the national capital market 9.26–30

pre-investment phase 9.28–9

private investors 9.07, 9.08, 9.13, 9.14, 9.16, 9.18, 9.20, 9.41

protectionist measures, nothing shall prevent application of 9.38–40

soft law commitments maintaining the freedom of financial institutions 9.18, 9.36

third state 9.05, 9.08, 9.11, 9.13, 9.14, 9.16, 9.18, 9.26, 9.28

transfer restrictions 9.03

travaux préparatoires 9.04, 9.18, 9.21

accession 41.01–4

association agreements 43.02, 43.03

Conference approval 34.23–4, 41.03

depositary 41.02

Regional Economic Integration Organizations (REIOs) 41.01, 41.03

states 41.01, 41.03

Acconci, P. 10.04, 10.10, 10.47, 10.50

acquisition or distribution of energy materials and products in conditions of short supply 24.02, 24.15

ad hoc conference or executive body 42.03

ad hoc tribunal

dispute settlement between contracting parties 27.11–12, 27.15, 27.19–22

non-derogation from WTO Agreement 4.11

Secretariat awards 35.16

trade-related investment measures, Australian Declaration 5.30–31

see also dispute settlement

Adlung, R. 11.02, 11.03

administrative rulings, and transparency 20.01, 20.03, 20.06–9

Ago, R. 4.04

Akerlof, G. 3.04

Aleksić, V. 18.01–28, 19.01–26

Alexandru, G. 13.02, 13.13, 13.20, 13.21, 13.22, 13.23, 13.24

alleviation obligation, and competition 6.04–10

Alqurashi, A. 13.02, 13.13

Alvarez, G. 20.01–10, 21.01–18, 24.01–16, 25.01–14

Amarasinha, S. 10.04, 10.47

amendments to international agreements 42.01–6

ad hoc conference or executive body 42.03

Energy Charter Conference, texts of amendments consideration and adoption 34.27–9

formal consent and ratification 42.04

import and export charges 42.06

liberalization of international trade 42.06

proposal procedure 42.02

Trade Amendment and WTO 42.05–6

amicable settlement 26.09–13, 27.06–8, 27.16–18

Amkhan, A. 40.37, 40.40

Andrews-Speed, P. 20.08, 26.05, 26.10, 26.12, 26.13, 26.21

annexes and decisions, status of 48.01–14

Annex D (interim provisions for trade dispute settlement) 48.06

Annex EM I (energy materials and products) 34.34–5, 48.06

Annex EQ I (energy-related equipment) 31.02, 48.06

Annex ID, countries not listed in 26.20

Annex NI (non-applicable energy materials and products and economic activity) 1.22, 48.06

Annex T (transitional arrangements) 32.02, 32.04, 32.09–11, 32.13

Annex TRM (trade-related investment measures) 48.06

Annex W (WTO Agreement) 48.06

as integral part of treaty 48.03–4

modifications and technical changes, Energy Charter Conference consideration and approval 34.30–31

annexes and decisions, status of, Protocol on Energy Efficiency and Related Environmental Aspects (PEEREA) 48.08–14

best practice recommendations 48.11, 48.14

cooperation focus 48.10–11

energy cycle role 48.09

environmental impact of energy use 48.09

legally binding obligations 48.11

review procedures 48.12

Working Group 48.11–12

appointment of Secretary General 35.01, 35.03, 35.12, 35.17–21

Ariza-Montobbio, P. 18.01

Arsanjani, M. 40.27, 40.36

‘as used in this Treaty’, definition 1.03–9

assignment of rights, and subrogation 15.01, 15.02, 15.04

association agreements 43.01–3

accession procedure and membership agreements 43.02, 43.03

Energy Charter Conference, authorizing negotiation and adoption 34.25–6

participation agreements 43.03

attribution of liability

establishing, promotion, protection and treatment of investments 10.18, 10.20–21, 10.34

multiple causes 13.31

observance by sub-national authorities 23.01–2

state-owned and privileged enterprises 22.02, 22.16–21, 22.26–8

Aust, A. 34.14, 34.23, 34.27, 36.06, 40.04, 40.27, 50.04

Australian Declaration see trade-related investment measures, Australian Declaration

authentic texts 50.01–6

authoritative equality of each text 50.04–5

content and interpretative implications 50.03–6

interpretation and enforcement of treaty 50.01

languages used 50.01–3

and Vienna Convention 50.02, 50.03–6

available capacity 33.14, 33.19

awareness raising activities, environmental aspects 19.06, 19.10, 19.19

Azaria, D. 24.05

Baltag, C. 10.05, 10.22, 10.40, 10.48, 26.04, 26.06, 26.28, 26.35, 27.01–25, 28.01–4

Bamberger, C. 8.04, 8.23, 8.30, 8.33, 8.35, 8.48, 8.57, 9.22, 21.16, 24.01, 24.14, 25.03, 25.08, 25.11, 25.14, 43.03

Banifatemi, Y. 26.03

bankruptcy and insolvency cases 14.08, 21.12

barriers to competition see competition, market distortions and barriers to competition

Baumgart, M. 29.01–18

Begic, T. 10.13

Bekker, P. 26.18

Belohlávek, A. 10.44

Belyi, A. 3, 10.50

Belz, M. 26.03

Ben Hamida, W. 10.05, 10.08, 10.12, 10.16, 10.47, 10.48, 10.50

beneficial ownership and control 1.36, 1.40

Benito, E. 10.48

Bertrana Horta, X. 23.11

best efforts clause 8.31, 9.01, 9.20, 9.22, 9.28, 9.40

best practices, Protocol on Energy Efficiency and Related Environmental Aspects (PEEREA) 33.08, 48.11, 48.14

best-endeavour commitment, interim provisions on trade related matters 29.11–12

Bhala, R. 22.04, 22.10

Bianco, G. 20.03

Binder, C. 10.02

Bittner, P. 49.10

Bjorge, E. 10.06, 10.07, 10.09

Bjorklund, A. 10.02, 10.09, 10.42, 10.50

Blakeney, M. 8.09, 8.10, 8.39

Blanch, J. 26.28

Blyschak, P. 40.31

Böckstiegel, K.-H. 10.04

bona fide measures see good faith interpretation

Borg, G. 10.44

Borlini, L. 49.01–10, 50.01–6

borrowing of funds 9.05, 9.08, 9.13–14, 9.16, 9.19, 9.38

see also access to capital

Boute, A. 10.10, 10.44, 10.50

Brazell, L. 8.53, 19.24, 22.01, 24.01

Brown, C. 10.04, 13.02, 13.10, 45.04

Bubrowski, H. 10.12

budgets 34.13, 36.02, 36.04, 36.09, 37.02, 37.03

Bungenberg, M. 10.02, 10.08, 10.14, 10.16, 40.44

business interests

and denial of benefits clause 17.08, 17.09–10, 17.12, 17.14, 17.17–21

transfers related to investments 14.02

business judgment and market investor principle criteria 22.07, 22.11

Caddell, R. 49.01

Cameron, P. 9.28

candidate criteria, Secretariat 35.18

capacity building, and technology transfer 8.12

capital access see access to capital

capital transactions, transfers related to investments 14.02–3, 14.07, 14.09

Carter, B. P.03, 44.02, 47.03

carve-out clauses, taxation 21.02–4, 21.06–12, 21.16, 21.17

Cerný, F. 10.44

Chairperson and Vice-Chairperson, Energy Charter Conference, subsidiary bodies 34.39

cherry picking avoidance, Energy Charter Conference 34.17

choice-of-law provision, dispute settlement, investor-state 26.34–6

claims to money and claims to performance definition 1.42–7, 1.55

claw-back clause, taxation 21.06, 21.12, 21.15, 21.16, 21.18

climate change 19.03

see also environmental aspects

code of conduct 8.09, 34.37, 35.03

colonial extension clauses 40.03

command-and-control measures, environmental aspects 19.09

commercial reservation, dispute settlement, investor-state 26.33

compensation for losses 12.01–6

damages assessment and balance of probabilities 13.34

heads of damages reference 13.31

income-based valuation 10.21

loss resulting from either requisitioning or destruction 12.06

most favourable treatment 12.05

payment of prompt, adequate and effective 13.24–8

plurality of awards 10.38–9

restitution and compensation obligations 13.33–47

standard for breach of obligations 10.21

subnational entities and monetary damages 26.40–41

and transit of goods 7.32–9

war or national emergency 24.10, 24.16

see also conciliation

competition 6.01–17

alleviation obligation 6.04–10

competitive price-fixing 3.04

cooperation and assistance provisions 6.03, 6.14–17

countries with limited experience 6.14

dispute settlement 6.03, 6.15–17

economic activity in the energy sector clause 6.05

experienced parties 6.14

free trade market and fair competition 9.02, 9.19, 9.34, 9.37

free trade market and free competition 8.32

‘open and competitive market’ 3.02–4

rules and abuse of dominant position P.07, P.09

and trade liberalization 6.01

transitional arrangements 32.07, 32.10, 32.11–16

unilateral and concerted anti-competitive conduct 6.13

WTO Doha Round and technical assistance activity 6.02

competition, enforcement of competition provisions by the Contracting Parties 6.11–13

cooperation between Contracting Parties and between national competition authorities 6.14

enforces such laws as are necessary and appropriate 6.12

information exchange and cooperation 6.14

infringement, cooperation and dispute resolution 6.15–17

technical assistance between countries 6.14

unilateral and concerted anti-competitive conduct 6.13

competition, market distortions and barriers to competition 6.04–10

barriers to entry markets 6.10

definition 6.08

parties ‘shall work to prevent’ obligation 6.06–7

pricing and production distortion 6.08–9

reform discretion 6.09

complementarities and mutual benefits 2.16, 2.20, 8.03, 8.57

conceding clause 16.02

conciliation

conciliator appointment 35.23–4

conciliator disqualified and proceedings suspended 35.25

conciliator informs Secretariat in writing 35.26

environmental aspects 19.16

investor-state dispute settlement see dispute settlement, investor-state, international arbitration or conciliation

provisional application 45.04

transit of goods 7.32–9

see also compensation for losses

Conference see Energy Charter Conference

confidentiality requirements 7.35, 20.04, 35.24

conflicting treaties 10.07, 10.08, 10.13, 16.03–5

congestion management, Transit Protocol 33.18–19

consent to arbitration, dispute settlement, investor-state 26.14–17, 26.20–22, 26.29, 26.31, 26.33

construction and operation requirement, definition 1.25

contractual or property right definition 1.30

cooling-off provisions 13.09, 26.10, 27.17

Coop, G. 10.02, 12.02, 12.03

cooperation

and access to capital 9.03, 9.35

‘as used in this treaty’ definition 1.06, 1.08

and competition 6.03, 6.14, 6.15–17

EU Partnership and Cooperation Agreements (PCAs) 11.06–7

non-derogation from WTO Agreement 4.02–3, 4.04–5

obligation, competition 6.14–17

promotion, protection and treatment of investments 10.04

Protocol on Energy Efficiency and Related Environmental Aspects (PEEREA) 33.11, 48.10–11

and purpose of the Treaty 2.08–10, 2.17–21

strategies in Eastern and Western Europe Countries P.05

technology transfer 8.03–4, 8.10, 8.12–13, 8.23–4, 8.28–9

transit of goods 7.06, 7.07, 7.10

transition countries 34.16

copyright 1.87–8

see also intellectual property rights

Corten, O. 40.04

costs

allocation 27.24

awarded, and expropriation 13.47

environmental aspects 19.04, 19.09, 19.10, 19.21

Secretariat proceedings 35.26

Transit Protocol 33.18–19

see also funding principles

Cottier, T. 3.05, 3.08, 4.10, 6.05, 45.02

Cotula, L. 10.44

country reports, energy efficiency 33.06–7

Crawford, J. 10.48, 22.14

currency

freely convertible 1.93

restrictions 14.06

customary international law, promotion, protection and treatment of investments 10.13, 10.15, 10.17, 10.18–19, 10.21, 10.33, 10.36, 10.43

customs unions 24.06–7, 24.16, 25.06, 25.07, 25.10

see also free-trade areas; tariffs

D’Allaire, D. 10.09

damages see compensation

De Brabandere, E. 10.02

De Luca, A. 14.10, 26.40, 26.41

decisions, depositary quasi-decisional role 49.08–9

decisions and annexes see annexes and decisions, status of

Declarations

definition 1.92

negotiation and approving their issuance 34.20–22

and Protocols see Protocols and Declarations

definitions 1.01–93

area of a State that is a contracting party 1.77–80

‘as used in this Treaty’ 1.03–9

‘as used in this treaty’, cooperation principles 1.06, 1.08

available capacity 33.14

competition 6.08

Contracting Parties 1.05, 1.08, 1.11–12, 1.14, 1.63–6, 1.72, 1.79, 1.82–3, 1.89

economic integration agreement (EIA) 25.02–3

energy cycle 19.18

energy materials and products 1.17–21

energy-related equipment 1.19

European Energy Charter 1.03–9

freely convertible currency 1.93

intellectual property rights 1.86–8

Regional Economic Integration Organisation (REIO) 1.10, 1.13–14, 1.15–16, 1.79

returns 1.75–6

sovereignty 18.01–2, 18.12

state entity 22.06

state-owned enterprise 22.04–11

taxation 21.18

technology transfer 8.10

transit of goods 7.01–2

transparency 20.05

WTO (World Trade Organization) 1.81–5

WTO (World Trade Organization), GATT 1.81, 1.83, 1.85

definitions, economic activity in the energy sector 1.22–6

construction and operation requirement 1.25

electricity generation 1.23

excluded products and materials 1.22

investment associated with 1.26

definitions, Energy Charter

Declaration 1.92

Protocol 1.89–92

Transit Protocol 1.91

definitions, investment 1.27–56, 1.70–74

beneficial ownership and control 1.36, 1.40

claims to money and claims to performance pursuant to contract associated with an investment 1.42–7, 1.55

contractual or property right 1.30

contribution to the economic development of the host State 1.32

control element 1.29

effective date 1.31, 1.53–4

as every kind of asset 1.28

fair and equitable treatment 1.72–3

foreign control 1.56

indirect ownership or control 1.37, 1.39–41, 1.56

indirect ownership of shares 1.39–40

intellectual property rights 1.48

making of 1.70–74

minimum threshold 1.74

nominal legal ownership by investor 1.35–7

returns 1.49–56

Salini test 1.32–3, 22.06

tangible and intangible holdings 1.38

definitions, investor 1.28, 1.35–7, 1.46, 1.57–69

activity element 1.59

of another Contracting Party 1.64–5

company organized under the laws of a Contracting Party 1.66–8

government agency as 1.67

nationality based on identification cards and passports 1.68

ownership chain and indirect investment 1.60

status of ‘permanently residing in’ 1.62–5

and third state 1.61, 1.69

denial of benefits clause 10.09, 17.01–24

business interests 17.08, 17.09–10, 17.12, 17.14, 17.17–21

diplomatic relationship requirement 17.22–3

legal entity needs to be owned or controlled by the nationals of ‘third State’ 17.09–10, 17.12, 17.15–16, 17.22–3

legitimate expectations protection 17.10, 17.13

prior notification and consultation 17.12–13

promotion, protection and treatment of investments 10.01–14, 10.16, 10.18–19, 10.24, 10.43, 10.44, 10.48, 10.50, 10.54

reserved right 17.01, 17.06, 17.09

retrospective or prospective effect 17.11, 17.13

right to deny the advantages of Part III 17.08–12

substantial business interests 17.08, 17.09, 17.12, 17.14, 17.17–21

third state own or control status 17.08, 17.13, 40.31–4

travaux préparatoires 17.15

depositary, Government of Portuguese Republic as 49.01–10

accession 41.02

appointment 39.02

flexibility principle 49.02

functions assigned to, and quasi-decisional role 49.08–9

impartiality principle 49.02

International Law Commission debate 49.06

registration and publication of treaties 49.09–10

and Vienna Convention 49.02–5, 49.07–9

deprivation degree, and expropriation 13.15, 13.19, 13.29

designated agency, and subrogation 15.03

destruction, loss resulting from 12.06

deterrent condition, and withdrawal from international treaties 47.06

development and recovery of resources 18.10, 18.28

developments and challenges in international trade agreements 30.01–7

legally-binding standstill on customs duties 30.03

Marrakesh Agreement 30.04

member states not yet in the WTO 30.06

Protocols and Declarations 30.02

Trade Amendment 30.02, 30.03–7

WTO system 30.02, 30.04–7

developments in international trade agreements, energy equipment 31.01–4

Annex EQ1 (energy-related equipment) 31.02

and environmental technology transfer 31.03, 31.04

Trade Amendment 31.02–3

trade barrier removal 31.03

developments in international trade agreements, transitional arrangements 30.02, 32.01–16

access to capital 9.21–2, 9.24–5

Annex T 32.02, 32.04, 32.09–11, 32.13

and competition 32.07, 32.10, 32.11–16

cooperative efforts and modernization of energy sectors 34.16

elimination of non-complying measures 32.04

exceptions 32.04–5

information requests and official enquiry points 32.05

interim provisions on trade related matters 29.01

phase-outs’ status 32.06

public interest objectives 32.13

suspensions, impact of 32.07, 32.09–16

technical assistance options 32.06

termination 32.08

terms of reference for the negotiation of Protocols 34.17–19

trade-related investment measures (TRIMS) see trade-related investment measures (TRIMS), transitional regime prior to the entry into force of the Charter

Dias Simões, F. 13.03, 13.13, 13.19, 26.01–42

Diehl, A. 26.07, 26.15

Dimopoulos, A. 10.08, 11.02, 11.03

diplomatic relationships 17.22–3, 27.03–7, 27.09

discrimination

avoidance P.06

concerns 24.09, 24.15

prohibition, economic integration agreement (EIA) 25.14

and taxation 21.01, 21.09, 21.11–13, 21.15

see also non-discrimination

dispute settlement

ad hoc tribunal see ad hoc tribunal

Annex D 48.06

and competition 6.03, 6.15–17

environmental aspects 19.11–16, 19.26

exceptions 24.05

function 2.14, 2.26

interim provisions on trade related matters 29.17–18

observance by sub-national authorities 23.06–7, 23.14, 26.40–41

promotion, protection and treatment of investments 10.10–13, 10.15, 10.16, 10.19–21

Secretariat role see Secretariat, dispute resolution role and transit of energy materials and products

and taxation 21.03

transit of goods 7.29–39

withdrawal from international treaties 47.08

dispute settlement between contracting parties 27.01–25

ad hoc arbitral tribunal 27.11–12, 27.15, 27.19–22

amicable settlement 27.06–8, 27.16–18

amicable settlement, and time constraints 27.16–18

arbitral award shall be final and binding 27.24

costs allocation 27.24

diplomatic protection and exchange 27.03–7, 27.09

and International Centre for Settlement of Investment Disputes (ICSID) 27.01, 27.04, 27.05, 27.08

International Investment Agreements (IIAs) 27.03–9

interpretation and application of ECT 27.02, 27.06–8, 27.10–12, 27.14–16, 27.19, 27.21

non-application in certain disputes 5.30

remedies, exhaustion of 27.09

state-state dispute resolution 27.03, 27.06–7, 27.09

trade-related investment measures 27.13–14

and UN Commission on International Trade Law (UNCITRAL) 27.22

dispute settlement between contracting parties, exclusion of certain provisions 28.01–4

interim provisions on trade-related matters 28.02

trade-related investment measures 28.02

transfers related to investments 28.03

and WTO GATT 28.02–4

dispute settlement, investor-state 26.01–42, 27.17

alleged breach of an obligation under Part III ECT 26.04–8, 26.18

alleged breach of an obligation under umbrella clause 26.07, 26.21, 26.35

amicable resolution 26.09–13

arbitration award shall be final and binding upon the parties to the dispute 26.38–42

consent to arbitration 26.14–17, 26.20–22, 26.29, 26.31, 26.33

courts or administrative tribunals of the host state 26.11

enforcement of awards 26.22, 26.31–3, 26.38, 26.42

environmental protection 26.05

and EU law rules 10.08

exemption 26.21

favourable treatment requirement 26.08

interest award 26.39

intergovernmental agreements 26.08

International Centre for Settlement of Investment Disputes (ICSID) 26.24–5, 26.28, 26.31, 26.33, 26.36, 26.37, 26.38, 26.42

investment relationship 26.04

law applicable to the merits of the dispute (choice-of-law provision) 26.34–6

law applicable to the merits of the dispute (choice-of-law provision), conflict of laws issues 26.36

law applicable to the merits of the dispute (choice-of-law provision), domestic law 26.34–6

local companies subject to foreign control 26.37

‘making of investment’ and ‘investment’, distinction between 26.06

New York Convention 26.31–3, 26.38, 26.42

pre-investment phase 26.04–5, 26.06

previously agreed dispute settlement procedure 26.12

promotion, protection and treatment of investments 10.13–14, 10.19, 10.45

promotion, protection and treatment of investments and minimum standard of treatment required by international law 26.34

provisional application 26.03, 45.04

remedies, exhaustion of 26.15, 26.19, 26.40, 26.41

resolution through negotiation 26.09–10

review of awards 26.38

sovereignty 26.05

state-owned and privileged enterprises 22.19

Stockholm Chamber of Commerce 26.27

subnational entities and monetary damages 26.40–41

timeous and effective enforcement 26.42

transit obligations 26.05

transparency 20.04, 26.05

UN Commission on International Trade Law (UNCITRAL) Arbitration Rules 26.26, 26.31, 26.36

and WTO GATT 26.34

dispute settlement, investor-state, international arbitration or conciliation 26.13–22

arbitral forum choice 26.23–30, 26.32

commercial reservation 26.33

counterclaims by responding states 26.30

countries not listed in Annex ID 26.20

domestic litigation, contractual arbitration, and arbitration, and opt-out 26.20

‘fork-in-the-road’ provision 26.17

host state launching judicial or arbitral proceedings 26.18–19

intra-EU arbitrations 26.22

jurisdictional requirements and consent in writing 26.29, 26.33

previous submissions, effects of 26.18

sovereign immunity issues 26.33

umbrella clause opt-out 26.19, 26.21

unconditional consent 26.15

unconditional consent to investment arbitration by contracting parties 26.31–3

dividends, valuation of loss of 13.41, 13.46

Dolzer, R. 10.04, 14.04, 22.15

domestic law

and breach of obligation 10.14

dispute settlement, investor-state 26.19, 26.20, 26.34–6

see also most-favoured-nation (MFN) treatment; national treatment (NT) principle; state issues

Dörr, O. 49.01, 49.05, 50.02, 50.06

double taxation agreements 21.10

Douglas, Z. 10.04, 10.05, 10.12, 10.13, 10.19, 13.18, 40.32

due process of law, and expropriation 13.23, 24.11

Dupuy, P. 10.02, 10.13, 10.15

Eckenroth, A. 30.01–7, 31.01–4, 32.01–16, 33.01–35

economic activity in the energy sector

and competition 6.05

definition see Definitions, economic activity in the energy sector

international markets, promotion of access to 3.07–8

economic development

definition 1.32

promotion 2.13

economic integration agreement (EIA) 25.01–14

customs unions 25.06, 25.07, 25.10

definition 25.02–3

discriminatory measures prohibition 25.14

Economic Integration Investment Agreements (EIIAs) 25.01

exceptions 24.07, 24.09, 25.04, 25.06–8

free-trade areas 25.06–7, 25.10–12

jurisdictional objections 25.13–14

most-favoured-nation (MFN) treatment 25.04, 25.08, 25.09

pyramidal form 25.01

special relationship concerns 25.06

WTO GATT Agreement and interim provisions on trade-related matters 25.05

economic and social disadvantages 24.03, 24.15

economic threshold benefits 24.03

effective date definition 1.31, 1.53–4

electricity generation 1.23

eligibility, voting see voting in Charter Conference

elimination

quantitative restrictions, interim provisions on trade related matters 29.07

technology transfer obstacles 8.47–50

trade-related investment measures (TRIMS) 5.21

Elshihabi, S. 24.06, 24.09, 25.06, 26.05, 26.06

emission reduction 19.08, 19.09–10

see also environmental aspects

Energy Charter Conference 34.01–43

accessions 34.23–4, 41.03

ad hoc conference or executive body, amendments to international agreements 42.03

association agreements, authorizing the negotiation and adoption 34.25–6

carrying-out the duties assigned to it by the ECT and any Protocols 34.07–8

cherry picking avoidance 34.17

Code of Conduct amendment 34.37

coordination of appropriate general measures 34.11

energy materials and products and energy-related equipment, addition and deletion of items 34.34–5

extraordinary meetings 34.04

funding principles 37.01–3, 37.05–6

headquarter agreement 34.14–15

implementation review and facilitation of principles and provisions 34.09–10, 34.10

listing of signatories, consideration and approval 34.32–3

meetings 34.04

members and observers 34.02–3, 34.25

modifications and technical changes to the Annexes, consideration and approval 34.30–31

negotiation of Declarations and approving their issuance 34.20–22

official Commentaries, adoption of 34.09

powers and functions 34.05–37

privileges and immunities, considering and adopting 34.14–15

programmes of work, considering and adopting 34.12

Rules of Procedure 34.01, 34.24, 34.36–7, 34.39–40, 35.01, 35.09, 35.17, 35.20–21, 36.01, 36.03–5

Secretariat involvement 34.05, 34.13, 35.05, 35.09, 35.10, 35.12

Secretary General appointment 34.36–7

Staff Regulations and Rules 34.37

texts of amendments to the ECT, consideration and adoption 34.27–9

transition countries 34.16, 34.17–19

voting see voting in Charter Conference

see also Secretariat

Energy Charter Conference, subsidiary bodies 34.38–41, 35.09

Chairperson and Vice-Chairperson 34.39

equitable geographical distribution among Contracting Parties and Signatories 34.39

membership and terms of reference 34.40

reporting obligations 34.41

Standing Groups 34.38

Working Groups 34.38

energy cycle definition, environmental aspects 19.04, 19.08, 19.18, 19.19, 19.24, 19.25, 33.05, 48.09

energy efficiency

environmental aspects 9.30, 9.36–7, 19.08, 19.20

Protocol see Protocols and Declarations, Protocol on Energy Efficiency and Related Environmental Aspects (PEEREA)

technology transfer 8.04, 8.06, 8.23, 8.25–6

energy flow, transit of goods 7.24, 7.29, 7.30, 7.37

energy materials and products

Annex EM I 34.34–5, 48.06

definition 1.17–21

exceptions 24.02, 24.12, 24.15

interim provisions on trade related matters 29.01, 29.02, 29.05, 29.13

international markets, promotion of access to 3.05–8

non-derogation from WTO Agreement 4.09–10

Secretariat see Secretariat, dispute resolution role and transit of energy materials and products

taxation 21.09

technology transfer 8.14

transit of goods 7.08–10, 7.12, 7.14, 7.15, 7.17–19, 7.21–7, 7.42

energy poverty effects 19.04–5

energy trilemma 19.02–5

see also environmental aspects

energy-related equipment

Annex EQ I and II 34.34–5, 48.06

definition 1.19

and developments in international trade agreements see developments in international trade agreements, energy equipment

exceptions 24.12

interim provisions on trade related matters 29.01, 29.02, 29.05, 29.06, 29.10, 29.11, 29.13

international markets, promotion of access to 3.05–8

non-derogation from WTO Agreement 4.09–10

enforcement of awards, dispute settlement, investor-state 26.22, 26.31–3, 26.38, 26.42

enforcement of competition provisions see competition, enforcement of competition provisions by the Contracting Parties

enquiry points 32.05

see also information exchange

entry barriers P.06, 3.02, 4.06, 6.10, 8.04, 8.06, 8.51, 31.03

see also competition

entry into force of international agreements 44.01–6

additional conditions 44.05

legal effects 45.01, 45.02

obligation to perform in good faith 44.06

pacta sunt servanda principle 44.06

ratification process 39.01, 44.03–4

States’ commitment 45.03

time framework 44.04

entry and stay requests, key personnel 11.04–9

environmental aspects P.07, 19.01–26

access to capital 9.30, 9.36–7

awareness raising activities 19.06, 19.10, 19.19

and climate change 19.03

command-and-control measures 19.09

cost effectiveness principle 19.21

dispute settlement 19.11–16, 19.26

dispute settlement, investor-state 26.05

emission reduction 19.08, 19.09–10

energy cycle 19.04, 19.08, 19.18, 19.19, 19.24, 19.25, 33.05, 48.09

energy efficiency 9.30, 9.36–7, 19.08, 19.20

energy poverty effects 19.04–5

energy trilemma 19.02–5

environmental impact assessment 19.06–7, 19.19

and European Energy Charter 19.01

exceptions 24.01, 24.15

external costs 19.04, 19.09, 19.10

and International Energy Charter 19.02

market-based control instruments 19.09

mediation and conciliation 19.16

polluter pays principle 19.23–5

Protocol see Protocols and Declarations, Protocol on Energy Efficiency and Related Environmental Aspects (PEEREA)

public interest objectives 19.24

safety aspects of resource exploitation 18.10, 18.28

sovereignty over energy resources 18.10, 18.28, 19.22

state sovereignty and responsibility 19.22

sustainable development 19.01–5, 19.08

technology transfer 8.19, 8.25–6, 8.28–9, 8.32, 31.03, 31.04

estoppel principle 45.02

EU

intra-EU arbitrations 26.22

Spinelli Report, and withdrawal from international treaties 47.09

EU law, investor-state arbitration 10.08

EU Partnership and Cooperation Agreements (PCAs) 11.06–7

Euler, D. 20.04

European Energy Charter P.04–6

definition 1.03–9

and environmental aspects 19.01

and promotion, protection and treatment of investments 10.16

and purpose of the Treaty 2.04

and technology transfer 8.04–6, 8.15, 8.26, 8.29, 8.33, 8.51

exceptions 24.01–16

access to capital 9.21–2

acquisition or distribution of energy materials and products in conditions of short supply 24.02, 24.15

bilateral or multilateral agreements 24.08, 24.16

compensation for losses in cases of war or national emergency 24.10, 24.16

customs unions 24.06, 24.07, 24.16

discrimination concerns 24.09, 24.15

dispute resolution 24.05

economic integration agreement (EIA) 24.07, 24.09, 25.04, 25.06–8

economic threshold benefits 24.03

essential security interests 24.04, 24.16

expropriation of another Contracting Party’s investments 24.11

free-trade areas or customs unions 24.06–7, 24.16

health and environmental protection 24.01, 24.15

interim provisions and trade in energy materials and products and energy-related equipment 24.12

interim provisions on trade related matters 29.08

investors who are aboriginal people or socially or economically disadvantaged individuals 24.03, 24.15

law and order, maintaining 24.04

most-favoured-nation (MFN) treatment 24.06, 24.16

non-proliferation of nuclear weapons 24.04, 24.16

taxation 21.07–13

technology transfer 8.38, 8.54–5

trade-related investment measures 5.03, 5.13–16, 5.18, 5.23–9, 5.30

transfers related to investments 14.08–10

transit restrictions 24.05

transitional arrangements 32.04–5

voting in Charter Conference 36.07

and WTO GATT Agreement 24.01, 24.13–14

exchange rates 9.03, 14.06, 14.08, 37.04

see also access to capital

exclusions, dispute settlement between contracting parties see dispute settlement between contracting parties, exclusion of certain provisions

exclusive economic zone 18.03–4, 18.19

see also sovereignty over energy resources

exemptions

carve-out clauses and taxation 21.02–4, 21.06–12, 21.16, 21.17

dispute settlement, investor-state 26.21

sovereignty over energy resources 18.21, 18.25

transit of goods 7.14–15, 7.20

expertise of relevant international financial institutions, and access to capital 9.05, 9.06, 9.08, 9.13, 9.14, 9.16, 9.35

export promotion, trade-related investment measures 5.16, 5.18

expropriation 13.01–47

asset value increase 13.25

causation issues 13.31

conditions to be met 13.20–29

costs awarded 13.47

damages assessment and balance of probabilities 13.34

deprivation degree 13.19

distinct parts of investment or investment rights affected 13.17

and due process of law 13.23, 24.11

exceptions 24.11

fair and equitable treatment (FET) standard 13.12, 13.43

good faith interpretation 13.03, 13.09

heads of damages reference 13.31

illegal expropriation 13.27–8

interests due for expropriation 13.44

investment protection from both direct and indirect expropriation 13.15

irreversibility of effects 13.19, 13.29

law of treaties and law of state responsibility 13.03, 13.30

mitigation issues 13.32, 13.34

multiple causes attribution 13.31

non-discrimination 13.22

and Part III ECT 13.10, 13.13

payment of prompt, adequate and effective compensation 13.24–8

procedural stage of a decision 13.05

promotion, protection and treatment of investments application 13.12, 13.44

public interest purpose 13.21

regulatory takings 13.16

remedies, exhaustion of 13.09

restitution and compensation obligations 13.33–47

sovereignty over energy resources 18.15–16

substantial deprivation test 13.15, 13.29

taxation measures 13.04, 13.05, 13.07–11, 13.43, 21.01, 21.03, 21.07, 21.11–15

test under international law 13.18

travaux préparatoires 13.03, 13.27

tribunal jurisdiction, direct 13.10, 13.16

tribunal jurisdiction, indirect 13.06–9, 13.18

umbrella clause 13.19

valuation date 13.25–9, 13.33, 13.35

valuation methods 13.36–47

without prejudice 13.19

external costs, environmental aspects 19.04, 19.09, 19.10

extraordinary meetings, Energy Charter Conference 34.04

facilitating trade or investment abroad 9.31–4

see also access to capital

fair and equitable treatment (FET)

definition 1.72–3

dispute settlement, investor-state 26.08

expropriation 13.12, 13.43

key personnel 11.11

promotion, protection and treatment of investments 10.25–8, 10.31, 10.32–9, 10.42, 10.44, 10.55

purpose of the Treaty 2.07

technology transfer 8.09

Fauchald, O. 10.04

Fecák, T. 10.06, 10.07

Feldman, M. 40.31

financial institutions

expertise of relevant 9.05, 9.06, 9.08, 9.13, 9.14, 9.16, 9.35

freedom of 9.18, 9.36

see also access to capital

first refusal right, Transit Protocol 33.20–24

flexibility principle, depositary 49.02

foreign control

definition 1.56

local companies subject to, dispute settlement, investor-state 26.37

‘fork-in-the-road’ provision, dispute settlement, investor-state 26.17

forum choice 26.23–30, 26.32, 33.08–10

Fouchard, C. 26.22

Fox, W. 25.06

Frasl, I. 29.04, 29.06, 29.11, 29.14, 29.17

free-trade areas

customs unions 24.06–7, 24.16, 25.06, 25.07, 25.10

economic integration agreement (EIA) 25.06–7, 25.10–12

and fair competition, access to capital 9.02, 9.19, 9.34, 9.37

and free competition, technology transfer, commercial and non-discriminatory basis 8.32

promotion, protection and treatment of investments 10.04

Friedland, P. 10.50

Fry, J. 11.02, 11.03, 11.04, 11.05

funding principles 37.01–7

budgetary expenses 37.02, 37.03

and Charter Conference 37.01–3, 37.05–6

cost types 37.02–3

financial contribution determination 37.04–5

financial contribution determination, arrears and voting rights 37.05

representation costs 37.02, 37.03

and Secretariat 37.01–6

voluntary contributions 37.06

see also costs

Gadelshina, E. 10.10

Gaillard, E. 10.11, 26.03, 26.04, 26.07, 26.12, 26.17, 26.18, 26.20, 26.21, 26.26, 26.28, 26.41

Gazzini, T. 10.02, 10.43

Geraets, D. 1.01–93

Ghering, M. 20.04

Giegerich, T. 46.02

Goldberg, S. 30.01–7, 31.01–4, 32.01–16, 33.01–35

Gómez-Palacio, I. 10.45, 10.47, 10.48, 10.49

Gómez-Robledo, J. 40.27

good faith interpretation

bona fide measures 10.37, 13.10–11, 21.02–4

entry into force of international agreements 44.06

expropriation 13.03, 13.09

key personnel performance 11.08

promotion, protection and treatment of investments 10.15, 10.17, 10.36

sovereignty over energy resources 18.17

taxation 21.06

transfers related to investments 14.08

see also non-discrimination principle

government agency as investor, definition 1.67

government procurement, trade-related investment measures 5.18

Grasso, C. 22.01–28, 23.01–16, 24.01–16, 25.01–14

Gurry, F. 8.10

Hafner, G. 40.36

Haghighi, S. 18.22, 26.07, 26.20, 26.30

Hamida, W. 26.04, 26.06

Hanewald, C. 11.02, 12.02

Happ, R. 10.04, 10.08, 10.10, 10.12, 10.13, 10.19, 10.29, 10.41, 10.42, 10.44, 10.54, 26.07, 26.15, 26.17, 26.33, 26.34, 27.06

Happold, M. 10.07, 10.13, 10.43, 10.48, 10.53, 10.54, 26.03, 26.04, 26.10, 26.15, 26.28, 26.35, 40.27, 40.36

Harrison, J. 10.04

Hays, S. 48.08

headquarter agreement, Energy Charter Conference 34.14–15

heads of damages reference 13.31

see also compensation

Heiskanen, V. 10.04, 10.39, 10.42

Henderson, D. 14.03

Hepburn, J. 10.14

Herman, L. 10.04, 10.50, 26.17, 26.20

Hindelang, S. 26.22

Hirsch, M. 10.04, 10.06, 10.32

Hobe, S. 10.08, 10.14

Hobér, K. P.05, 10.04, 10.10–12, 10.18, 10.39, 10.41–4, 10.48, 22.21, 26.03, 26.10, 26.15, 26.37, 45.03

Hoffmann, A. 10.09, 10.10

Hoffmeister, F. 13.02, 13.13, 13.20, 13.21, 13.22, 13.23, 13.24

Holland, W. 9.23

Honlet, J.-C. 10.44

Houde, M. 16.03

Huarte Melgar, B. 8.01–57, 9.01–41

Hudson, M. 49.10

Hunter, T. 18.01–28, 19.01–26, 22.01–28

IMF Agreement addressing trade imbalances 14.02, 14.03, 14.07, 14.10

immunities, privileges and immunities, Energy Charter Conference considering and adopting 34.14–15

impartiality principle, depositary 49.02

indemnifying party, subrogation 15.02–5

indirect investment definition 1.60

indirect ownership definition 1.37, 1.39–41, 1.56

industrial property definition 1.87

see also intellectual property rights

information exchange

and competition 6.14

transitional arrangements 32.05

and transparency 20.08

see also language used

intellectual property rights

definition 1.48, 1.86–8

promotion, protection and treatment of investments 10.53

technology transfer 8.21, 8.36, 8.39–46, 8.48, 8.50

see also property rights

interconnection levels, transit of goods 7.06, 7.07, 7.10

interest award, dispute settlement, investor-state 26.39

intergovernmental agreements 7.05, 8.09, 20.03, 20.10, 26.08

interim provisions on trade related matters 29.01–18

access to capital 9.21–2, 9.24–5

Annex D 48.06

best-endeavour commitment 29.11–12

dispute settlement 28.02, 29.17–18

economic integration agreement (EIA) 25.05

elimination of quantitative restrictions 29.07

energy materials and products 29.01, 29.02, 29.05, 29.13

energy-related equipment 29.01, 29.02, 29.05, 29.06, 29.10, 29.11, 29.13

exceptions 24.12, 29.08

incorporation of the WTO Agreement’s rights and obligations 29.04, 29.05–8, 29.16

most-favoured-nation treatment 29.07

national treatment 29.07

non-WTO members 29.01, 29.06

rights and obligations to energy-related trade among non-WTO Members 29.06

stand still clause 29.12–16

stand still clause, opt-out 29.15

state-owned and privileged enterprises 22.23–4

tariff increases, advance notification of 29.11

temporal scope 29.03–4

transitional provisions 29.01

transparency obligations 29.09–10, 29.16

International Centre for Settlement of Investment Disputes (ICSID) 1.33

dispute settlement between contracting parties 27.01, 27.04, 27.05, 27.08

dispute settlement, investor-state 26.24–5, 26.28, 26.31, 26.33, 26.36, 26.37, 26.38, 26.42

international investment agreements (IIAs) 27.03–9

relation to other agreements 16.03–5

transfers related to investments 14.04–6, 14.08–10

international markets, promotion of access to 3.01–8

competitive price-fixing 3.04

economic activity in the energy sector distinction 3.07–8

‘energy materials and products and energy-related equipment’ 3.05–8

‘energy materials and products and energy-related equipment’, material scope doubt 3.06

‘open and competitive market’ 3.02–4

and World Customs Organization (WCO) harmonized system 3.05

international responsibility, and promotion, protection and treatment of investments 10.20

international trade agreements, developments and challenges see developments and challenges in international trade agreements

interpretation

authentic texts 50.01, 50.03–6

dispute settlement between contracting parties 27.02, 27.06–8, 27.10–12, 27.14–16, 27.19, 27.21

promotion, protection and treatment of investments 10.07, 10.37

sovereignty over energy resources 18.22

trade-related investment measures 5.12

withdrawal from international treaties 47.06

interruptions in supply, dealing with 7.06, 7.26, 7.28–30

see also transit of goods

investment

access to capital, facilitating trade or investment abroad 9.31–4

definition see definitions, investment

making of investment 1.70–74, 10.48, 10.49, 26.06

promotion, protection and treatment of see promotion, protection and treatment of investments

investor, definition see definitions, investor

investor-state, dispute settlement see dispute settlement, investor-state

investors’ protection, provisional application 45.04

irreversibility of effects, and expropriation 13.19, 13.29

Ishikawa, T. 26.03

Italian withdrawal from treaty 1.11, 47.08

iura novit curia principle 10.39

Jackson, J. 24.06, 25.08

Jennings, R. 18.12

joint written notifications, Secretariat gathering 35.14

jurisdiction, direct and indirect, and expropriation 13.06–9, 13.10, 13.16, 13.18

jurisdictional objections, economic integration agreement (EIA) 25.13–14

Kang, P. 10.10

Kauppila, J. P.11

Keating, M. 23.07

Kelsen, H. 22.13

Kenneth, K. 22.15

Kern, C. 14.07, 14.08

key personnel 11.01–11

entry and stay requests 11.04–9

EU Partnership and Cooperation Agreements (PCAs) 11.06–7

fair and equitable treatment (FET) 11.11

good faith performance 11.08

Kirkness, R. 10.04

Kjos, H. 26.09, 26.35

Klabbers, J. 44.02

Kläger, R. 10.32, 10.41

Klein, P. 40.04

Knoll-Tudor, I. 10.04

Kokott, J. 10.04, 10.47

Kolb, R. 10.07

Kolo, A. 10.38, 19.24

Konoplyanik, A. 10.04, 10.08, 10.11, 10.44, 10.47, 10.48, 13.23, 33.14, 33.17, 33.18, 33.23, 33.24, 33.25, 33.26, 33.27

Kozawa, S. 10.39, 22.01

Krestin, M. 26.22

Kriebaum, U. 10.42

Krieger, H. 45.01

Krommendijk, J. 10.13

Kustova, I. 8.24

Kuzemko, C. 19.03

Laidlaw, P. 26.03

Laird, I. 8.38

land rights, transparency 20.10

language used

authentic texts 50.01–3

taxation terminological and definitional problems 21.18

see also information exchange

Lavranos, N. 26.22

law, choice-of-law provision, dispute settlement, investor-state 26.34–6

law and order, maintaining 24.04

law of treaties and law of state responsibility 10.15, 10.18, 10.20–21, 13.03, 13.30

Leal-Arcas, R. 10.04, 22.07, 22.17, 23.14, 25.01, 47.09

leasing of federally owned land, Russian Federation 8.37

Leathley, C. 11.02, 11.03

Lefeber, R. 40.27

legal effects, entry into force of international agreements 45.01, 45.02

legal framework, purpose of the Treaty 2.22–6

legal ownership definition 1.35–7

legitimate expectations protection

denial of benefits clause 17.10, 17.13

promotion, protection and treatment of investments 10.09, 10.31, 10.34–7

less favourable treatment, agreements affording 16.05

Leung, P. 10.44

Lew, J. 26.13, 26.42

liberalization of international trade P.06, 6.01, 8.51, 9.23, 14.03, 14.05, 42.06

Liesen, R. 10.04, 26.05

Lim, C. 10.05

Lisney, N. 30.01–7, 31.01–4, 32.01–16, 33.01–35

listings

illustrative list of fund transfers 14.05, 14.09

standards, listing in sequence 10.17, 10.33

TRIMs Agreement Illustrative list 5.02, 5.12, 5.15

local companies subject to foreign control 26.37

Loibl, G. 26.05

Lopez Ortiz, A. 21.01

losses, compensation for see compensation for losses

Lupo Pasini, F. 14.03

McCarthy, C. 13.02, 13.13

MacDougall, D. 9.28

McGowan, F. 1

McLachlan, C. 10.04, 10.05, 10.08, 10.09, 10.12, 10.14

McNeill, M. 26.03, 26.04, 26.07, 26.12, 26.17, 26.18, 26.20, 26.21, 26.26, 26.28, 26.41

making of investment 1.70–74, 10.48, 10.49, 26.06

Maniruzzaman, M. 10.47, 10.48, 26.14, 26.15, 26.35

Mann, F. 14.01

margin of change to legislation, assessment of 10.36

Markert, L. 10.12

market access see international markets, promotion of access to

market distortions and competition see competition, market distortions and barriers to competition

market principles and lending practices, access to capital 9.08, 9.38

market-based control instruments, environmental aspects 19.09

Marrakesh Agreement 29.04, 30.04

Martinez, L. 10.04, 10.11, 10.12, 10.13, 10.20, 10.32, 10.41, 10.42, 10.44, 10.50, 26.04, 26.17, 26.28

mediation see conciliation

Mejía-Lemos, D. 10.01–55, 11.01–11, 12.01–6, 13.01–47

members and observers, Energy Charter Conference 34.02–3, 34.25, 34.40

Mestral, A. de 10.30, 10.31

minimum standard of treatment 10.31, 10.33

minimum threshold 1.74, 44.02, 47.05

Mironova, I. 8.21

Mitchell, A. 45.04

Molinuevo, M. 11.02, 11.03

monitoring

implementation monitoring, Energy Charter Conference 34.10

Protocol on Energy Efficiency and Related Environmental Aspects (PEEREA) 33.06–7

Secretariat implementation and amendment of the ECT and Protocol’s obligations 35.07–8

Transit Protocol 33.29

Montanaro, F. 14.01–10, 16.01–5

Morelli, A. P.01–13, 42.01–6, 43.01–3, 44.01–6, 45.01–4, 46.01–2, 47.01–10

Morijn, J. 10.13

Morra, F. 47.08

Mosoti, V. 10.50

most-favoured-nation (MFN) treatment

access to capital 9.06, 9.28

compensation for losses 12.05

economic integration agreement (EIA) 25.04, 25.08, 25.09

exceptions 24.06, 24.16

interim provisions on trade related matters 29.07

promotion, protection and treatment of investments 10.50

Secretariat 35.14

taxation 21.10, 21.16

technology transfer 8.33–8

transit of goods 7.13–14

see also domestic law; national treatment (NT) principle; state issues

Muchlinski, P. 10.02, 10.45, 10.47, 10.48, 10.49

Mudliar, A. 15.01–5, 17.01–24

Müller, J. 45.02

Nathanson, R. 13.02, 13.13

national treatment (NT) principle P.06

interim provisions on trade related matters 29.07

promotion, protection and treatment of investments 10.50

state-owned and privileged enterprises 22.22, 22.25

taxation 21.08, 21.09, 21.10

technology transfer 8.35–6

trade-related investment measures (TRIMS) 5.07

transit of goods 7.11–15

see also domestic law; most-favoured-nation (MFN) principle; state issues

nationalist challenges, and withdrawal from international treaties 47.09

nationality based on identification cards and passports 1.68

natural monopolies, state-owned and privileged enterprises 22.03

Ndi, G. 18.22

negotiation of Declarations and approving their issuance, Energy Charter Conference 34.20–22

New York Convention 26.31–3, 26.38, 26.42

Newcombe, A. 10.24, 14.02, 26.07

Niebruegge, A. 13.02, 13.13, 26.03, 45.02

Nomenclature of Territorial Units for Statistics (NUTS) system 23.07

nominal legal ownership by investor, definition 1.35–7

non-applicable provisions

denial of benefits clause see denial of benefits clause

dispute settlement between contracting parties 5.30

energy materials and products 1.22, 48.06

WTO agreement and interim provisions on trade related matters 29.06

non-derogation from WTO Agreement 4.01–11

‘as they are applied between those Contracting Parties’, dynamic character of 4.07

dispute settlement and ad hoc tribunal 4.11

energy materials and products and energy-related equipment provision 4.09–10

material scope and GATS applicability 4.08–10, 14.03

non-WTO members 4.01–3, 4.05, 4.10

observance by sub-national authorities 23.16

patterns of interactions for signatory parties 4.02–3, 4.04–5

primary rules and secondary rules, distinction between 4.04–5, 4.11

relation to other agreements and preservation of rights 16.04

state-owned and privileged enterprises 22.24

technology transfer, commercial and non-discriminatory basis 8.32

Trade Amendment 4.06

trade-related investment measures 5.14, 5.29

non-discrimination principle

access to capital 9.19–20, 9.26–9, 9.32

expropriation 13.22

promotion, protection and treatment of investments 10.40–42

purpose of the Treaty 2.08–9

sovereignty over energy resources 18.07, 18.11, 18.26–7

state-owned and privileged enterprises 22.23

technology transfer see technology transfer, commercial and non-discriminatory basis

transfers related to investments 14.08

transit of goods 7.03, 7.07, 7.09–11, 7.15–17, 7.20, 7.42

Transit Protocol 33.19

see also discrimination; good faith interpretation; transparency

non-member states, Secretariat’s relations with 35.11

non-proliferation of nuclear technology P.07, P.10, 8.21, 8.27, 8.47, 8.48–55, 24.04, 24.26

non-retroactive effect principle, transit of goods 7.40–41

non-WTO members 3.04, 4.01–3, 4.05, 4.10, 5.18, 5.20, 5.25–6, 29.01, 29.06

norm conflicts, relation to other agreements 16.01–2

observance by sub-national authorities 23.01–16

attribution of liability 23.01–2

dispute settlement provisions 23.06–7, 23.14, 26.40–41

Nomenclature of Territorial Units for Statistics (NUTS) system 23.07

non-derogation from WTO Agreement 23.16

original version 23.03–4

reasonable measures as may be available 23.04–5

regional government roles 23.07–13

sub-regional authorities, municipalities and local community services involvement 23.01, 23.08–13

subsidiarity principle 23.10

WTO GATT Agreement 23.05, 23.14–16

see also state issues

observers, Energy Charter Conference 34.02–3, 34.25

OECD Capital Movements Code, transfers related to investments 14.03, 14.05

OECD liberalization code 14.05

OECD technology transfer definition 8.10

Öğütçü, M. 8.25

Omalu, M. 20.07, 26.01, 26.15, 26.20, 26.29, 26.30, 26.40

openness see non-discrimination principle

opt-out clauses 26.19, 26.20, 26.21, 29.15

Ortino, F. 10.42, 10.50

Ouguergouz, F. 49.07

overlaps among claims and prayers of relief 10.38–9

overseas territories 40.01, 40.03, 40.08, 40.17–22, 40.23–4, 40.27–30, 40.33–47

see also territorial scope

ownership chain and indirect investment definition 1.60

Özgür, U. 21.01, 21.06, 21.11, 21.15, 21.18

Paasivirta, E. 26.21

pacta sunt servanda principle 10.44, 18.17, 22.21, 44.06, 47.02, 47.07

Papaionnou, A. 24.02

‘paper profit’ accumulation problem, taxation 21.12

Paradell, L. 14.02, 26.07

Parish, M. 26.15, 26.21

Park, W. 10.42

Parola, L. 47.08

participation agreements 43.03

see also association agreements

passports, nationality based on 1.68

Paulsson, J. 13.18, 26.01, 26.10, 26.12, 26.13, 26.26, 26.28, 26.29, 26.30, 26.40, 26.41

Pauwelyn, J. 22.24, 23.16

Pavoni, R. 10.13

Peers, S. 11.02, 11.06

permanent residency status definition 1.62–5

Perrez, F. 19.24

personnel, key see key personnel

Peters, J. 46.02

Petri, M. 48.01–14, 49.01–10, 50.01–6

phase-out management

trade-related investment measures (TRIMS) 5.20, 5.21, 5.22

transitional arrangements 32.06

Piernas López, J. 13.03, 13.15

Pigou, A. 19.09

policy debate forum, Protocol on Energy Efficiency and Related Environmental Aspects (PEEREA) 33.08–10

Polkinghorne, M. 26.17

polluter pays principle 19.23–5

see also environmental aspects

Ponzano, P. 47.09

Portugal, Government of the Portuguese Republic as depositary see depositary, Government of Portuguese Republic as

Posner, T. 27.05

poverty, energy poverty effects 19.04–5

prayers of relief, overlaps among claims and 10.38–9

pre-investment phase 9.28–9, 10.30, 10.48, 26.04–5, 26.06

Preamble P.01–13, 1.07, 1.32, 4.09

Charter of Paris for a New Europe P.04

competition rules and abuse of dominant position P.07, P.09

cooperation strategies in Eastern and Western Europe Countries P.05

discrimination avoidance P.06

environmental protection P.07

European Energy Charter P.04–6

international nuclear non-proliferation obligations P.07, P.10

trade barriers, removal of P.06

United Nations Convention on Long-Range Transboundary Air Pollution P.07, P.12

United Nations Framework Convention on Climate Change P.07, P.11

World Trade Organization standards P.06–7

predictability concerns

trade-related investment measures (TRIMs) 5.12

transparency 20.03, 20.06

preferential tariff or quota programs 5.18

see also tariffs

preservation of rights clause 16.04

see also non-derogation from WTO Agreement

previous submissions, effects of, dispute settlement, investor-state 26.18

previously agreed dispute settlement procedure 26.12

price-fixing 3.04

see also competition

pricing and production distortion 6.08–9

see also competition

prior notification and consultation, denial of benefits clause 17.12–13

private investors, and access to capital 9.07, 9.08, 9.13, 9.14, 9.16, 9.18, 9.20, 9.41

privileged enterprises see state-owned and privileged enterprises

privileges and immunities, considering and adopting, Energy Charter Conference 34.14–15

pro tem test, promotion, protection and treatment of investments 10.12

Proctor, C. 14.02

profits

‘paper profit’ accumulation problem, and taxation 21.12

repatriation 14.05

promotion, protection and treatment of investments 10.01–55

bilateral and multilateral treaties 10.04, 10.06

bona fide criterion 10.37

breach of obligations, establishing attribution 10.20–21

compensation standard for breach of obligations 10.21

compensations and income-based valuation 10.21

conflicting treaties, interpretation and application 10.07, 10.08, 10.13

considerations of economy 10.39

Contracting Party’s obligations concerning Investments of Investors of other Contracting Parties 10.43

cooperation focus 10.04

and denial of benefits clause 10.01–14, 10.16, 10.18–19, 10.24, 10.43, 10.44, 10.48, 10.50, 10.54

and denial-of-benefits clause 10.09, 10.10

disconnection clause, absence of 10.08

dispute resolution 10.10–13, 10.15, 10.16, 10.19–21

dispute settlement between investor and contracting party, and choice of applicable law 10.13–14, 10.19, 10.45

domestic law and breach of obligation 10.14

effective claim assertion and right enforcement means and rule of law 10.55

effectiveness and good faith principle 10.17

enactment, interpretation and application of the internal law of a Contracting Party 10.37

‘endeavour to accord’ obligation 10.45

and European Energy Charter 10.16

expropriation 13.12, 13.44

fair and equitable treatment (FET) 10.25–8, 10.31, 10.32–9, 10.42, 10.44, 10.55

free trade agreements 10.04

good faith application 10.15, 10.36

independent meaning retention 10.17

intellectual property treatment 10.53

international law, customary 10.15, 10.17, 10.18–19, 10.21, 10.33, 10.36, 10.43

international law rules, application without prejudice 10.13, 10.20

and international responsibility 10.20

investor-state arbitration and EU law rules 10.08

iura novit curia principle 10.39

law of treaties and law of state responsibility as applicable law in arbitrations 10.15, 10.18, 10.20–21

legitimate expectations protection 10.31, 10.34–7

listing in sequence of standards 10.17, 10.33

making of investments obligations 10.48

making of investments obligations, rights to make voluntary declarations or commitments 10.49

margin of change to legislation, assessment of 10.36

maxims 10.17

minimum standard of treatment 10.31, 10.33

and minimum standard of treatment required by international law 26.34

mobile priority provisions 10.07

most constant protection and security obligations and non-impairment by unreasonable or discriminatory measures 10.40–42

most-favoured-nation obligation 10.50

national treatment (NT) principle 10.50

non-application issues 10.09

obligation to accord treatment to Investments of Investors 10.50

obligations applicable for an ‘unlimited’ period 10.05

overlaps among claims and prayers of relief 10.38–9

plurality of awards of compensation 10.38–9

pre-investment phase 10.30, 10.48

pro tem test 10.12

protection and security standard 10.41

protection standards are separate and autonomous 10.26

relation to other agreements, legal consequence 10.07

remedies, exhaustion of 10.19

report submission obligation 10.52

rules under treaty-based systems of law 10.08

separate listing of standards 10.17

stable, equitable, favourable and transparent conditions 10.29–31

standard and conditions of treatment 10.05

state responsibility 10.15, 10.18, 10.19, 10.20, 10.21

state-owned and privileged enterprises 10.18

supplementary treaty provision 8.36, 10.16, 10.47, 10.48, 10.51, 35.12

taxation and scope of operation 10.16

trade-related measure application 10.54

travaux préparatoires availability 10.16

treatment, meaning of 10.46

and VCLT rules 10.15–17

WTO (World Trade Organization), GATT 10.54

promotion, protection and treatment of investments, umbrella clause 10.44

denial of benefits clause 26.07, 26.21, 26.35

expropriation 13.19

opt-out, dispute settlement, investor-state 26.21

and pacta sunt servanda principle 10.44

state-owned and privileged enterprises 22.21

technology transfer 8.10

property rights 1.30, 18.05, 18.09, 18.23–5

see also intellectual property rights

protection standards see promotion, protection and treatment of investments

protectionism

and access to capital 9.18, 9.38–40

and transparency 20.07

Protocols and Declarations 33.01–35

definitions 1.89–92

developments and challenges in international trade agreements 30.02

Energy Charter Conference duties 34.07–8, 34.17–19

Secretariat implementation and amendment of obligations 35.07–8

transition countries 34.17–19

voting rules 33.03

Protocols and Declarations, Protocol on Energy Efficiency and Related Environmental Aspects (PEEREA) 33.04–11

annexes and decisions see annexes and decisions, status of, Protocol on Energy Efficiency and Related Environmental Aspects (PEEREA)

best practices awareness 33.08

definition 1.90–91

implementation monitoring and country reports 33.06–7

international organisation cooperation 33.11

policy debate forum 33.08–10

Protocols and Declarations, Transit Protocol 33.12–35

available capacity 33.14, 33.19

compliance monitoring 33.29

definitions 1.91

first refusal right 33.20–24

freedom of transit 33.12–13

guaranteed access to fixed infrastructure for the duration of long-term supply 33.20–24

REIO clause (implementation inside the EU) 33.15, 33.25–7

Right of First Refusal (RFR), Russian proposal 33.15–19, 33.21–6, 33.30, 33.32

suspension of work on draft 33.28–35

tariff formulation 33.14, 33.15, 33.24

tariffs and cost-reflectiveness 33.18–19

Trade and Transit Group, new 33.29–34

transparent and non-discriminatory congestion management 33.18–19

provisional application 45.01–4

conciliation 45.04

dispute settlement, investor-state 26.03, 45.04

estoppel principle 45.02

International Law Commission Report 45.03

investor-state dispute settlement 45.04

investors’ protection 45.04

signature 38.02

termination procedure 45.04

territorial scope 40.11, 40.17–47

and Vienna Convention 45.03

voluntary approach 45.03–4

prudential considerations, access to capital 9.05, 9.06, 9.14, 9.15, 9.16, 9.38, 9.39

public interest objectives

environmental aspects 19.24

expropriation 13.21

sovereignty over energy resources 18.22

transfers related to investments 14.08

transitional arrangements 32.13

public utilities 22.03, 22.06

see also state-owned and privileged enterprises

publication, depositary registration and publication of treaties 49.09–10

Pulkowski, D. 10.15

purpose of the Treaty 2.01–26

complementarities and mutual benefits 2.16, 2.20

cooperation promotion 2.08–10

dispute settlement function 2.14, 2.26

economic development promotion 2.13

and European Energy Charter 2.04

fair and equitable treatment 2.07

‘in accordance with the objectives and principles of the Charter’ 2.03–15

legal framework 2.22–6

legal framework, negotiating pillar 2.24–5

long-term cooperation in the energy field 2.03

‘long-term cooperation in the energy field’ 2.17–21

openness and non-discrimination 2.08–9

principle of national sovereignty 2.11

right to deny the benefits of Part III of ECT 2.20

transnational links, need for 2.14

transparency focus 2.07

pyramidal form, economic integration agreement (EIA) 25.01

qualified majority requirement 34.13, 36.04, 36.07, 36.09

see also voting in Charter Conference

quantitative restrictions elimination, interim provisions on trade related matters 29.07

ratification, formal consent and ratification, amendments to international agreements 42.04

ratification, acceptance or approval 39.01–3

depositary appointment 39.02

entry into force 39.01, 44.03–4

formal consent, amendments to international agreements 42.04

state practice 39.03

rebus sic stantibus clause (substantial unforeseen change), and withdrawal from international treaties 47.07

Reed, L. 10.04, 10.11, 10.12, 10.13, 10.20, 10.32, 10.41, 10.42, 10.44, 10.50, 26.04, 26.05, 26.15, 26.17, 26.28

Regional Economic Integration Organisation (REIO)

accession 41.01, 41.03

definition 1.10, 1.13–14, 1.15–16, 1.79

states and REIOs eligible to sign, signature 38.04

Transit Protocol 33.15, 33.25–7

voting in Charter Conference 36.02, 36.03

see also state issues

regional government roles 23.07–13

see also observance by sub-national authorities

registration and publication of treaties by depositary 49.09–10

regulatory takings, expropriation 13.16

Reiner, C. 10.13

Reinisch, A. 10.02, 10.04, 10.16, 10.37, 10.50, 47.08

Reins, L. 1.01–93, 2.01–26

Reisman, W. 40.27, 40.36

relation to other agreements 16.01–5

agreements affording a less favourable treatment 16.05

chronologic criterion 16.02

conceding clause 16.02

conflicts with other treaties 16.03–5

international investment agreements (IIAs) 16.03–5

legal consequence 10.07

non-derogation clause 16.04

norm conflicts 16.01–2

preservation of rights clause 16.04

VCLT principles 16.01

remedies, exhaustion of

dispute settlement between contracting parties 27.09

expropriation 13.09

promotion, protection and treatment of investments 10.19

Secretariat 35.22

transit of goods 7.31, 7.33

renewables, energy production from 5.06

repatriation of profits 14.05

see also profits

Repousis, O. 38.01–7, 39.01–3, 40.01–47, 41.01–4

representation costs 37.02, 37.03

see also funding principles

requisition, loss resulting from 12.06, 24.10

reservations 46.01–2

formalist versus pragmatist approach 46.02

inadmissible 46.02

utile per inutile non vitiatur principle 46.02

and Vienna Convention 46.02

reserved right, denial of benefits clause 17.01, 17.06, 17.09

restitution see compensation

retrospective or prospective effect, denial of benefits clause 17.11, 17.13

returns definition 1.49–56

review procedures

dispute settlement, investor-state 26.38

Energy Charter Conference 34.09–10, 34.10

expropriation, valuation review 13.45

Protocol on Energy Efficiency and Related Environmental Aspects (PEEREA) 48.12

Ribeiro, C. 10.02

Right of First Refusal (RFR), Transit Protocol 33.15–19, 33.21–6, 33.30, 33.32

risk assessment

expropriation and valuation and risks to taxation 13.43

offshore structure, complexity and opaqueness of 13.42

and transparency 20.09

Roe, T. 10.04, 10.07–8, 10.12–13, 10.15, 10.18, 10.43–5, 10.47–50, 10.52–5, 11.02, 11.04, 12.02–3, 12.05, 13.02, 13.04, 13.09, 13.14, 26.03–4, 26.10, 26.15, 26.28, 26.35, 40.27, 40.36

Rosenberg, C. 26.15, 26.21

Rosenne, S. 49.06, 49.08

Rules of Procedure, Energy Charter Conference 34.01, 34.24, 34.36–7, 34.39–40, 35.01, 35.09, 35.17, 35.20–21, 36.01, 36.03–5

Russia

leasing of federally owned land 8.37

Right of First Refusal (RFR) proposal, Transit Protocol 33.15–19, 33.21–6, 33.30, 33.32

Sacerdoti, G. 14.01, 14.06

safety aspects of resource exploitation 18.10, 18.28

see also environmental aspects; sovereignty over energy resources

Salacuse, J. 26.19, 26.27

Salini test definition 1.32–3, 22.06

Sattorova, M. 10.44

Schill, S. 10.04

Schlemmer, E. 10.10

Schmalenbach, K. 49.01, 49.05

Schreuer, C. 10.04, 10.11, 10.13, 10.17, 10.24, 10.31, 10.41, 10.42, 10.44, 13.02, 13.12, 13.13, 14.04, 22.15, 27.08

Seck, A. 8.23

Secretariat 35.01–29

analytical support and advice to the Energy Charter Conference and its subsidiary bodies 35.10

application deadlines 35.19

appointment of Secretary General 35.01, 35.03, 35.12, 35.17–21

awards of ad hoc constituted tribunals for dispute settlement, making available 35.16

candidate criteria 35.18

confidentiality requirements 35.24

Energy Charter Conference duties 34.05, 34.13, 34.36–7, 35.05

and funding principles 37.01–6

implementation and amendment of the ECT and Protocol’s obligations, monitoring and developing 35.07–8

joint written notifications, gathering 35.14

Model Agreements and transparency 20.09–10

most-favoured-nation treatment obligations 35.14

notifications, declarations, reports or requests made by Contracting Parties on intentions, commitments, obligations or conditions 35.13–15

organize and administer meetings of the Energy Charter Conference and its subsidiary bodies 35.09

relations with non-member states and other relevant international organisations and institutions, development of 35.11

remedies, exhaustion of 35.22

role and functions 35.05–16

Rules of Procedure 34.01, 34.24, 34.36–7, 34.39–40, 35.01, 35.09, 35.17, 35.20–21, 36.01, 36.03–5

Secretary General appointment 34.36–7

Secretary General role, transit of goods 7.30, 7.33–6, 7.39

staff 35.02–4

support negotiations on new instruments mandated by the Conference 35.12

see also Energy Charter Conference

Secretariat, dispute resolution role and transit of energy materials and products 35.22–8

arbitration panel 35.28

conciliator appointment 35.23–4

conciliator disqualified and proceedings suspended 35.25

conciliator informs in writing 35.26

costs of proceedings 35.26

disputes settlement mechanism 35.27–8

securities, and access to capital 9.05, 9.08, 9.13–14, 9.16, 9.19

security

essential security interests 24.04, 24.16

most constant protection and security obligations 10.40–42

protection and security standard 10.41

sovereign interests and security and stability balance 7.04, 7.22–4, 7.27

Selivanova, Y. 18.26, 22.24, 23.16, 26.07, 26.33

Seres, S. 8.13

Serhan, L. 26.03

Serra, P. 3.01–8, 4.01–11, 5.01–31, 6.01–17

services of general economic interest (SGEIs), state-owned and privileged enterprises 22.09

Shan, W. 10.08, 10.47, 10.48

shares

indirect ownership 1.39–40

sale of 9.05, 9.08, 9.13–14, 9.16, 9.19

see also access to capital

Sheppard, A. 10.12

Shine, C. 8.27, 8.47, 19.24

signature 38.01–7

provisional application 38.02, 40.23–30

state practice 38.05

states and REIOs eligible to sign 38.04

succession cases 38.06

temporal issues 38.03–4

territorial scope 40.23–30

Simma, B. 10.13, 10.15

Sinclair, A. 10.44, 40.31

Sipiorski, E. 10.04, 10.50

Slater, M. 26.02, 26.04

Smith, A. 6.08

Snidal, D. 48.11

social and economic disadvantages 24.03, 24.15

Sodupe, K. 10.48

soft law commitments, access to capital 9.18, 9.36

Sornarajah, M. 3

sovereignty over energy resources 18.01–28

border disputes 18.04

commercial access methods 18.06

development and recovery of resources 18.10, 18.28

dispute settlement, investor-state 26.05, 26.33

energy resources outside state sovereignty 18.02

environmental aspects 18.10, 18.28, 19.22

exclusive economic zone 18.03–4, 18.19

exemptions 18.21

good faith principle 18.17

interpretive ambiguity 18.22

limitations 18.27

negative aspects 18.22

pacta sunt servanda principle 18.17

permanent sovereignty over natural resources 18.13–15

property rights 18.05, 18.09, 18.23–5

public interest objectives 18.22

purpose of the Treaty 2.11

right to expropriate or transfer ownership of foreign property 18.15–16

sovereignty definition 18.01–2, 18.12

technology transfer 8.15, 8.32

territorial authority 18.12

transit of goods 7.04, 7.22–4, 7.27

transparency, equality and non-discrimination rules 18.07, 18.11, 18.26–7

and UN Convention on the Law of the Sea (UNCLOS) 18.03, 18.17–19

special relationship concerns, economic integration agreement (EIA) 25.06

Spiermann, O. 10.04, 10.14

Spinelli Report, and withdrawal from international treaties 47.09

staff regulations 34.37, 35.02–4

Stampalija, J. 11.02, 11.03, 11.04, 11.05

stand still clause, interim provisions on trade related matters 29.12–16, 30.03

Standing Groups, Energy Charter Conference 34.38

Stănescu, C. 7.01–42, 34.01–43, 35.01–29, 36.01–10, 37.01–7

Stani|$$|Ahc, A. 10.50

state issues

access to capital and provisions to protect private investors 9.07, 9.08, 9.13, 9.14, 9.16, 9.18, 9.20, 9.41

accession 41.01, 41.03

area of a State that is a contracting party definition 1.77–80

cooperation between Contracting Parties and national competition authorities 6.14

entry into force of international agreements 45.03

environmental aspects 19.22

law of treaties and law of state responsibility 10.15, 10.18, 10.20–21, 13.03, 13.30

local companies subject to foreign control 26.37

promotion, protection and treatment of investments 10.15, 10.18, 10.19, 10.20, 10.21

ratification, acceptance or approval 39.03

signature 38.05

state-owned and privileged enterprises 22.08–9, 22.13–15

state-state dispute resolution 27.03, 27.06–7, 27.09

territorial scope 40.14–16

see also most-favoured-nation (MFN) treatment; national treatment (NT) principle; observance by sub-national authorities; Regional Economic Integration Organisation (REIO)

state-owned and privileged enterprises 22.01–28

attribution rule 22.02, 22.16–21, 22.26–8

business judgment and market investor principle criteria 22.07, 22.11

dispute settlement 22.19

exclusive or special privileges 22.12

industrial sector development 22.03

interim provisions and WTO Agreement provisions 22.23–4

national treatment (NT) principle 22.22, 22.25

natural monopolies 22.03

non-derogation from WTO rules 22.24

non-discriminatory treatment 22.23

pacta sunt servanda principle 22.21

and Part III of ECT 22.19, 22.21

promotion, protection, and treatment of investments, umbrella clause 22.21

public utilities 22.03, 22.06

regulatory or administrative role of state-owned enterprise 22.25

state aid and services of general economic interest (SGEIs) 22.09

state entity definition 22.06

state responsibility 22.13–15

state-owned enterprise, lack of universally accepted definition and conceptual difficulties 22.04–11

WTO GATT 22.07, 22.23–4

Stevens, M. 10.04

Stevenson, R. 10.04

Stigler, G. 6.08

Stockholm Chamber of Commerce 26.27

Stoll, J. 49.07

Strik, P. 40.44

sub-national authorities see observance by sub-national authorities

Subedi, S. 10.04, 10.50

subrogation 15.01–5

assignment of rights 15.01, 15.02, 15.04

designated agency 15.03

indemnifying party 15.02–5

and investment insurance or guarantee contract 15.05

same treatment in respect of the rights and claims acquired 15.04

and transfer of rights 15.02–3

subsidiarity principle, observance by sub-national authorities 23.10

subsidiary bodies

Energy Charter Conference see Energy Charter Conference, subsidiary bodies

Secretariat to organize and administer meetings of the Energy Charter Conference and its subsidiary bodies 35.09

substantial business interests, and denial of benefits clause 17.08, 17.09, 17.12, 17.14, 17.17–21

succession cases, signature 38.06

Suleimenov, M. 9.23

supplementary treaty provision 8.36, 10.16, 10.47, 10.48, 10.51, 35.12

survival clause, and territorial scope 40.40, 40.47

suspension of work on draft, Transit Protocol 33.28–35

suspensions, impact of, transitional arrangements 32.07, 32.09–16

Sussman, E. 11.02, 26.15

sustainable development 19.01–5, 19.08

see also environmental aspects

Talseth, L.-C. 3

Talus, K. 7.33, 7.34, 34.16, 35.22, 35.23, 48.14

tangible and intangible holdings definition 1.38

tariffs

and amendments to international agreements 42.06

customs duties, legally-binding standstill 30.03

feed-in, and energy production from renewable resources 5.06

increases, advance notification of, interim provisions on trade related matters 29.11

preferential tariff or quota programs, trade-related investment measures 5.18

Transit Protocol 33.14, 33.15, 33.18–19, 33.24

see also customs unions

taxation 21.01–18

bona fide measures 21.02–4

carve-out clauses 21.02–4, 21.06–12, 21.16, 21.17

claw-back clause 21.06, 21.12, 21.15, 21.16, 21.18

competent tax authorities 21.13, 21.15

discrimination against energy materials and products originating in or destined for the area of another Contracting Party 21.09

dispute resolution 21.03

double taxation agreements 21.10

exceptions 21.07–13

expropriation measures 13.04, 13.05, 13.07–11, 13.43, 21.01, 21.03, 21.07, 21.11–15

good faith 21.06

indirect expropriation 21.03, 21.14

and investment treaty regulations 21.07

and measures excluded, expropriation 13.05, 13.07–11

most-favoured-nation (MFN) principle 21.10, 21.16

National Treatment (NT) protection 21.08, 21.09, 21.10

‘paper profit’ accumulation problem 21.12

practice and jurisdictional issues 21.14–18

scope of measures 21.05–6

and scope of operation, promotion, protection and treatment of investments 10.16

taxation measures context 21.01, 21.02–10, 21.12, 21.17–18

technology transfer 8.37

terminological and definitional problems 21.18

transparency 20.10

technical assistance

and competition 6.02, 6.14

transitional arrangements 32.06

technical changes to the Annexes, Energy Charter Conference consideration and approval 34.30–31

technology transfer 8.01–57

access to and transfer of energy technology 8.23–30

capacity building 8.12

complementarities and mutual benefits 8.03, 8.57

cooperation focus 8.03–4, 8.10, 8.12–13, 8.23–4, 8.28–9

definition 1.86

elimination of obstacles 8.47–50

energy efficiency 8.04, 8.06, 8.23, 8.25–6

environmental concerns 8.19, 8.25–6, 8.28–9, 8.32, 31.03, 31.04

and European Energy Charter 8.04–6, 8.15, 8.26, 8.29, 8.33, 8.51

fair and equitable conduct 8.09

intellectual property rights protection 8.21, 8.36, 8.39–46, 8.48, 8.50

most-favoured-nation (MFN) treatment 8.33–8

national sovereignty principle 8.15, 8.32

national treatment principle 8.35–6

non-discrimination concerning taxation matters 8.37

non-discriminatory basis 8.17–18, 8.20–21, 8.27, 8.29, 8.31–8

non-proliferation of nuclear technology P.07, P.10, 8.21, 8.27, 8.47, 8.48–55, 24.04, 24.26

OECD definition 8.10

political dialogue 8.24

transit of energy materials and products’ or ‘energy transport facilities’, difference from 8.14

transparency principle 8.32

travaux préparatoires 8.14

umbrella clause 8.10

universally applicable code of conduct 8.09

WTO GATT 8.35

technology transfer, commercial and non-discriminatory basis 8.29, 8.31–8

‘best efforts’ clause 8.31

exceptions 8.38

free trade market and free competition 8.32

leasing of federally owned land 8.37

non-derogation from WTO Agreement 8.32

termination procedure

provisional application 45.04

territorial scope 40.24–5, 40.46

transitional arrangements 32.08

see also withdrawal from international treaties

terminology see language used

territorial scope 40.01–47

colonial extension clauses 40.03

definition 1.77–8, 1.80

denial of benefits clause and third state 40.31–4

derogation from customary international law rule 40.04

international relations of which a contracting party is responsible 40.03–5

non-mandatory declarations 40.05

overseas territories 40.01, 40.03, 40.08, 40.17–22, 40.23–4, 40.27–30, 40.33–47

provisional application in respect of part of a signatory’s territory 40.23–30

sovereignty over energy resources 18.12

state practice 40.14–16

‘survival clause’ 40.40, 40.47

temporal issues 40.09–13

temporal issues, declarations and provisional application 40.11

temporal issues, withdrawal of declarations 40.13

termination of provisional application by a signatory 40.24–5, 40.46

territorial applications and provisional applications 40.11, 40.17–47

territorial applications and provisional applications, arbitral practice 40.31–47

territorial declarations and ECT area 40.06–8

third state 40.31, 40.32, 40.33

and Vienna Convention 40.04–5, 40.18, 40.25–6, 40.36

texts

amendments to the ECT, Energy Charter Conference consideration and adoption 34.27–9

authentic see authentic texts

third state

access to capital 9.05, 9.08, 9.11, 9.13, 9.14, 9.16, 9.18, 9.26, 9.28

definition 1.61, 1.69

denial of benefits clause 17.08, 17.09–10, 17.12, 17.13, 17.15–16, 17.22–3

territorial scope 40.31, 40.32, 40.33

transit of goods 7.02, 7.14

threshold

economic threshold benefits 24.03

minimum 1.74, 44.02, 47.05

Tichy, H. 49.10

Tietje, C. 10.04, 10.50

time constraints

chronologic criterion, relation to other agreements 16.02

dispute settlement between contracting parties 27.16–18

dispute settlement, investor-state 26.42

entry into force of international agreements 44.04

interim provisions on trade related matters 29.03–4

promotion, protection and treatment of investments 10.05

signature 38.03–4

territorial scope 40.09–13

trade-related investment measures (TRIMS) 5.20

withdrawal from international treaties 47.04

Titi, C. 10.16

Tomas Fornes, M. 23.11

Trachtman, J. 20.07

trade

access to capital 9.03, 9.19–20, 9.23, 9.27, 9.29, 9.31–4, 9.33, 9.41

interim provisions see interim provisions on trade related matters

international trade agreements see developments and challenges in international trade agreements

liberalization P.06, 6.01, 8.51, 9.23, 14.03, 14.05, 42.06

Trade Amendment 4.06, 30.02, 30.03–7, 31.02–3, 42.05–6

trade barriers P.06, 3.02, 4.06, 6.10, 8.04, 8.06, 8.51, 31.03

see also competition

Trade and Transit Group 33.29–34

trade-related investment measures (TRIMS) 5.01–31

Annex TRM and TRIMS 48.06

dispute settlement between contracting parties 27.13–14, 28.02

exceptions 5.03, 5.13–14, 5.16, 5.18, 5.23–9, 5.30

non-WTO members 5.18, 5.20, 5.25–6

obligations 5.10, 5.13, 5.16, 5.27

predictability concerns 5.12

promotion, protection and treatment of investments 10.54

provision-by-provision analysis see trade-related investment measures (TRIMS), provision-by-provision analysis

transposition process 5.06, 5.11, 5.26

trade-related investment measures (TRIMs), Australian Declaration 5.23–30

exceptions 5.24–9, 5.30

interaction patterns 5.25–9

jurisdictional issues 5.30–31

jurisdictional issues, dispute settlement and ad hoc system 5.30–31

non-derogatory provision 5.29

prohibition of inconsistent TRIMs 5.27

Trade Amendment effect 5.28

trade-related investment measures (TRIMS), provision-by-provision analysis 5.10–22

exceptions 5.13–16

export promotion 5.18

government procurement 5.16, 5.18

non-derogation from provisions of WTO Agreement 5.14

obligation for the company to buy ‘products of domestic origin or from any domestic source’ 5.16

preferential tariff or quota programs 5.18

and trade-related-investment-measure interpretation 5.12

without prejudice to the Contracting Party’s rights and obligations 5.13, 5.27

trade-related investment measures (TRIMS), transitional regime prior to the entry into force of the Charter 5.19–22

elimination of the measure 5.21

notification provisions 5.20, 5.21

phase-out management 5.20, 5.21, 5.22

temporal 5.20

trade-related investment measures (TRIMS), WTO approach 5.02–9

dispute settlement body 5.04

energy production from renewable resources and feed-in tariffs 5.06

and GATT and TRIM provisions, incompatibility between 5.03–14

national treatment obligation 5.07

and TRIMs Agreement Illustrative list 5.02, 5.12, 5.15

transfer

of ownership, sovereignty over energy resources 18.15–16

restrictions, and access to capital 9.03

of rights, and subrogation 15.02–3

technology see technology transfer

transfers related to investments 14.01–10

authorization procedure for outward transfer 14.04–5

bankruptcy and insolvency cases 14.08

capital transactions 14.02–3, 14.07, 14.09

currency restrictions 14.06

definition 1.76

dispute settlement between contracting parties, exclusion of certain provisions 28.03

disturbances of the balance of payments 14.08

exceptions to the transfer of funds 14.08–10

exchange restrictions 14.01–2

foreign investment 14.01, 14.05

free transfer of all payments 14.05

good faith and non-discrimination 14.08

illustrative list of fund transfers 14.05, 14.09

IMF Agreement addressing trade imbalances 14.02, 14.03, 14.07, 14.10

international investment agreements (IIAs) 14.04–6, 14.08–10

investment treaty practice 14.04

obligation to allow monetary transfers in a freely convertible currency 14.06

OECD Capital Movements Code 14.03, 14.05

OECD liberalization code 14.05

payments connected with the movement of goods, services and persons 14.09

payments related to business activities 14.02

public interest objectives 14.08

repatriation of profits 14.05

transfers in kind 14.10

WTO General Agreement on Trade in Services (GATS) 14.03

transit of goods 7.01–42

confidentiality requirements 7.35

construction of new capacities 7.19–20, 7.23–4, 7.27

cooperation commitment 7.06, 7.07, 7.10

definition 7.01–2

dispute resolution 7.29–39

dispute resolution, conciliation and compensation 7.32–9

dispute settlement, investor-state 26.05

energy flow 7.24, 7.29, 7.30, 7.37

energy materials and products see Secretariat, dispute resolution role and transit of energy materials and products

energy transport facilities and infrastructure 7.08–10, 7.12, 7.14, 7.15, 7.17–19, 7.21–7, 7.42

exceptions 24.05

exemptions 7.14–15, 7.20

interconnection levels 7.06, 7.07, 7.10

Intergovernmental and Host Government Model Agreements 7.05

international law obligations 7.40–41

interruptions in supply, dealing with 7.06, 7.26, 7.28–30

most-favoured-nation treatment (MFNT) 7.13–14

national treatment (NT) principle 7.11–15

non-discrimination principle 7.03, 7.07, 7.09–11, 7.15–17, 7.20, 7.42

non-retroactive effect principle 7.40–41

not possible on commercial terms 7.16–17, 7.19

and Part III of ECT – Investment Promotion and Protection 7.12–13

remedies, exhaustion of 7.31, 7.33

Secretary General role 7.30, 7.33–6, 7.39

sovereign interests and security and stability balance 7.04, 7.22–4, 7.27

and third state 7.02, 7.14

and WTO GATT 7.03, 7.09, 7.12

Transit Protocol see Protocols and Declarations, Transit Protocol

transitional arrangements see developments in international trade agreements, transitional arrangements

transparency 20.01–10

administrative rulings 20.01, 20.03, 20.06–9

application scope 20.07

confidentiality in commercial arbitration 20.04

definition, absence of 20.05

dispute settlement, investor-state 26.05

information requests and enquiry points 20.08

interim provisions on trade related matters 29.09–10, 29.16

investor-state relationship 20.04

judicial and legislative processes 20.07, 20.09

land rights 20.10

notion of 20.02–5

predictability 20.03, 20.06

promotion, protection and treatment of investments 10.29–31

protectionism 20.07

purpose of the Treaty 2.07

risk reduction 20.09

Secretariat Model Agreements 20.09–10

sovereignty over energy resources 18.07, 18.11, 18.26–7

tax measures 20.10

technology transfer 8.32

Transit Protocol 33.19

and WTO GATT 20.06–7

see also non-discrimination principle

transposition process, trade-related investment measures 5.06, 5.11, 5.26

travaux préparatoires

access to capital 9.04, 9.18, 9.21

denial of benefits clause 17.15

expropriation 13.03, 13.27

promotion, protection and treatment of investments 10.16

technology transfer 8.14

and withdrawal from international treaties 47.06, 47.09

TRIMS see trade-related investment measures (TRIMs)

Tucker, A. 10.13, 10.44, 10.48, 26.12

Tudor, I. 10.04, 10.44

Turinov, A. 10.44

UK

and Brexit 47.09

metropolitan territories, territorial scope 40.17–22, 40.23–4, 40.27–30, 40.33–47

umbrella clause see promotion, protection and treatment of investments, umbrella clause

UN Commission on International Trade Law (UNCITRAL)

and dispute settlement between contracting parties 27.22

dispute settlement, investor-state 26.26, 26.31, 26.36

UN Convention on the Law of the Sea (UNCLOS), and sovereignty over energy resources 18.03, 18.17–19

UN Convention on Long-Range Transboundary Air Pollution P.07, P.12

UN Framework Convention on Climate Change P.07, P.11

unanimity requirement, voting in Charter Conference 36.07–8, 36.09

unconditional consent, dispute settlement, investor-state 26.15, 26.31–3

utile per inutile non vitiatur principle, reservations 46.02

Vajda, P. 18.01–28, 19.01–26

valuation

expropriation 13.25–9, 13.33, 13.35, 13.36–47

income-based 10.21

Vandevelde, K. 26.04, 26.07, 26.08, 26.09, 26.10, 26.19, 26.20, 26.21, 26.32, 26.33, 26.37, 26.40, 27.16, 27.18

Vasciannie, S. 10.04, 10.32, 12.02, 12.03

Verhoosel, G. 13.02, 13.13

Vernon, R. 22.03

Vienna Convention on the Law of Treaties (VCLT) P.03, 1.34

authentic texts 50.02, 50.03–6

depositary 49.02–5, 49.07–9

promotion, protection and treatment of investments 10.15–17

provisional application 45.03

relation to other agreements 16.01

reservations 46.02

territorial scope 40.04–5, 40.18, 40.25–6, 40.36

withdrawal from international treaties 47.03–6

Villiger, M. 16.01, 40.04

Viñuales, J. 10.04, 10.13, 10.14

voluntary approach

promotion, protection and treatment of investments 10.49

provisional application 45.03–4

withdrawal from international treaties 47.04, 47.10

voluntary contributions, funding principles 37.06

Voon, T. 45.04

voting in Charter Conference 36.01–10

arrears in paying financial contributions 36.02

budgetary decisions 36.02, 36.04, 36.09

consensus of all Contracting Parties 36.06

eligibility 36.02

exceptions that require voting 36.07

financial obligations 36.02

funding principles 37.05

Protocols and Declarations 33.03

qualified majority requirement 34.13, 36.04, 36.07, 36.09

REIO’s voting rights 36.02, 36.03

rules 36.06–9

unanimity requirement 36.07–8, 36.09

voting by correspondence 36.03–5

voting by correspondence, rules of procedure 36.05

voting rights 34.03, 34.04, 34.13, 34.24, 34.26, 34.27, 34.30, 34.35, 34.40

Wagner, M. 45.02

Waibel, M. 14.01, 14.08, 14.10

Wälde, T. 2, 8.41, 8.53, 10.04–5, 10.08, 10.11–13, 10.16–18, 10.22, 10.38–9, 10.44, 10.47–8, 10.50, 10.54, 13.02, 13.23, 18.22, 19.24, 20.08, 22.03, 22.07, 22.16, 22.26, 23.06, 23.09, 23.16, 26.04–8, 26.10, 26.12–15, 26.17–19, 26.20–21, 26.30–31, 26.34–6, 26.38, 26.40–42

Walter, M. 27.05

Wang, G. 10.44

Watts, A. 18.12

WCO (World Customs Organization) 3.05

Weiner, A. P.03, 47.03

Weiss, F. 10.04

Weissenfels, A. 10.44

Winkler, M. 40.32

withdrawal from international treaties 47.01–10

chronological and procedural framework 47.04

deterrent condition 47.06

dispute settlement mechanisms 47.08

disputes between investor and contracting parties and unconditional consent given to arbitration 47.08

and investors’ prerogatives and investment protection obligations 47.08

Italian withdrawal 1.11, 47.08

minimum threshold for entry into force of treaty 47.05

nationalist challenges 47.09

pacta sunt servanda principle 47.02, 47.07

rebus sic stantibus clause (substantial unforeseen change) 47.07

Spinelli Report 47.09

supplementary means of interpretation 47.06

territorial scope 40.13

and travaux preparatoires 47.06, 47.09

UK and Brexit 47.09

and Vienna Convention 47.03–6

voluntary basis 47.04, 47.10

see also termination procedure

without prejudice

expropriation 13.19

promotion, protection and treatment of investments 10.13, 10.20

trade-related investment measures (TRIMS) 5.13, 5.27

Wittich, S. 10.18, 10.19, 10.31

Wouters, P. 10.04, 10.18, 10.44, 10.48, 22.26

writing

dispute resolution, conciliator informs in writing 35.14, 35.26

dispute resolution, jurisdictional requirements and consent in writing 26.29, 26.33

voting in Charter Conference by correspondence 36.03–5

WTO (World Trade Organization)

competition, Doha Round and technical assistance activity 6.02

definitions 1.81–5

developments and challenges in international trade agreements 30.02, 30.04–7

GATS (General Agreement on Trade in Services) applicability 4.08–10, 14.03

interim provisions 29.04, 29.05–8, 29.16

member states not yet in WTO 30.06

non-derogation from see non-derogation from WTO Agreement

standards P.06–7

and Trade Amendment 4.06, 30.02, 30.03–7, 31.02–3, 42.05–6

trade-related investment measures (TRIMS) see trade-related investment measures (TRIMS), WTO approach

WTO (World Trade Organization), GATT (General Agreement on Tariffs and Trade)

definitions 1.81, 1.83, 1.85

dispute settlement between contracting parties 28.02–4

dispute settlement, investor-state 26.34

economic integration agreement (EIA) 25.05

and exceptions 24.01, 24.13–14

interim provisions 29.04, 29.06–7, 29.16

observance by sub-national authorities 23.05, 23.14–16

promotion, protection and treatment of investments 10.54

state-owned and privileged enterprises 22.07, 22.23–4

technology transfer 8.35

trade-related investment measures (TRIMS) see trade-related investment measures (TRIMS)

and transit of goods 7.03, 7.09, 7.12

and transparency 20.06–7

Wuschka, S. 27.06

Yannaca-Small, K. 16.03

Zhang, S. 10.44, 10.48

Ziegler, A. 10.04, 10.50

Zimmermann, C. 14.02, 14.05