The modernisation of the Energy Charter Treaty and international investment arbitration

Master Thesis
Συγγραφέας
Papazisi, Christina Vasiliki
Παπαζήση, Χριστίνα Βασιλική
Ημερομηνία
2024Επιβλέπων
Liakouras, PetrosΛιάκουρας, Πέτρος
Προβολή/ Άνοιγμα
Λέξεις κλειδιά
Energy ; International arbitration ; Investment ; Investor ; ECTΠερίληψη
Historically, the energy sector, with the exception of the transmission and distribution
fields, was unregulated and covered with high levels of uncertainty about various legal
aspects. However, that started to change gradually after the Cold War since the
cooperation between Eastern and Western Europe and the inurement of stable energy
flows around countries was more imperative than ever. In order to encourage and
secure investments in the energy sector, the contracting parties agreed upon the
possibility for compensation claims in order to secure a playing field for all energy
companies, without relying on national jurisdictions, which were not always
trustworthy in many participating states.
In order to ensure this stability and transparency in energy flows globally, a multilateral
energy-related treaty was established in 1994, the Energy Charter Treaty (ECT), that
came into force in 1998. However, in the late 2010s, as a result of the evolving global
energy landscape, the shifting geopolitical realities, and increasing concerns about
climate change, the modernization of the ECT came as a matter of discussion in the
global energy landscape. The aim of that modernization was to adapt the Treaty to
modern energy market trends and new environmental objectives and to address
concerns related to sustainable energy transitions and the environmental impact of
the ongoing or future energy investments.
Many geopolitical and economic factors contributed to the modernization of ECT and
make it more imperative than ever. However, the internal factors influencing the
effective functioning of the Treaty and its impact on global energy trade have proven
to be equally catalytic. The Investor-State Dispute Settlement (ISDS) mechanism is
highly used under the ECT and plays an important role in shaping international
investment law and energy governance. However, with the constantly evolving energy
landscape and especially with the shift towards energy transition, ECT and its
arbitration mechanisms, particularly ICSID, are under severe scrutiny. More
specifically, the ECT, aiming mainly at investment protection by providing broader
investment protection and, at the same time, hindering climate action through
Investor-State Dispute Settlement (ISDS) provisions, tended to create an imbalance
between the interests of investors and host states.
This thesis is organized into four distinct sections, with the structure outlined as
follows: Firstly, I provide a brief analysis of the background and origin of the ECT, as
well as I refer to some of the fundamental elements and principles that the Treaty
addresses. Secondly, I expose the problematic areas of the Treaty that need to be
modernized and amended in order to align with the contemporary environmental
goals and shifting geopolitical dynamics. In the third part of my thesis, I expose the
substantive and technical characteristics of international investment arbitration, which
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serves as the primary mechanism for legal recourse under the ECT, and at the same
time I present the relation between the ECT and EU law as it is reflected by ISDS case
law. Last but not least, my thesis concludes with the criticism of the Agreement in
Principle concerning the proposed amendments of the Treaty and also with some
recommendations related to the reformation of the main problematic areas of the
Treaty in order to strengthen its presence in the future.