Virtual Seminar: The Energy Charter Treaty: is it still fit for purpose and how could it be improved?

The Energy Charter Treaty, which was signed in 1994 and entered into force in 1998, is a multilateral treaty with over 50 parties, including the European Union and the vast majority of European and former CIS States, together with Japan, Turkey, Mongolia and other countries around the world.  It covers energy trade, transit, investment protection, efficiency and environmental aspects with overarching dispute settlement provisions.  Its best-known international legal dimension relates to investment protection and investor-State arbitration, where it has served as the legal basis for over 100 publicly known investor-State arbitration proceedings.  The Treaty was the legal basis for the well-known Yukos arbitration proceedings against the Russian Federation and has recently been invoked by Nord Stream 2 AG to launch investment arbitration proceedings against the European Union as a supra-national entity.

Particularly in recent years, the Energy Charter Treaty has been the subject of a number of criticisms and suggestions for improvement.  These range from proposals to incorporate a stronger emphasis on clean energy, to strengthen provisions on energy efficiency and to incorporate climate change, through suggestions that State parties should enjoy greater freedom to regulate investment, to the outright abrogation of the Treaty.  The European Union and ECT member States are currently holding ongoing discussions with a view to agreeing how to modernise and develop the Treaty so that it is more responsive to 21st century concerns.

This seminar addressed a number of these concerns and the proposals which ECT parties have made in order to address them.  It included the viewpoints of two key ECT members – the European Union and the United Kingdom – together with the views of a renowned academic with specialist expertise in the Treaty.

 

The speakers for this seminar were:

Carlo Pettinato (Head of the investment policy and intellectual property unit in the Directorate General for Trade, European Commission). Mr Pettinato will address ‘Modernising the Energy Charter Treaty:  how can the Treaty support the imperatives of the 21st century?’.

Carlo Pettinato and his team are leading the negotiations for the modernisation of the Energy Charter Treaty on behalf of the Commission. Before this post Mr Pettinato was Deputy Head of the unit responsible for trade relations with Latin America.  He started his EU career in DG Trade in the trade defence department and then moved to become EU negotiator on investment issues in the WTO, OECD, ASEM, and in the context of the EU-Chile and EU-Mercosur negotiations (1998-2004). Between 2005 and 2011 he was posted as economic counsellor in the EU Delegations to Jamaica (Kingston) and Central America (Managua).

Carlo Pettinato studied Political Sciences with specialisation in International Economics at the University of Florence and holds a Master in Public Administration from the Solvay Business School. He has been guest lecturer at Bocconi University (Milan, Italy), PhD course in International Economic Law, and at the College of Europe (Bruges, Belgium).

Louis Bickler (Head of Investment Policy & Negotiations, Department for International Trade, United Kingdom).  Mr Bickler addressed ‘How a modernised ECT benefits both investors and States’.  This covered the following issues:

• The importance of the ECT to the UK;
• The importance of the investment protection provisions in the ECT to UK investors; and
• Modernisation of protections and ISDS provisions.

Louis Bicker serves as the UK lead negotiator in the modernisation of the Energy Charter Treaty negotiations. Louis has also led on the UK’s negotiations on investment in the UK-Japan Economic Partnership agreement negotiations.

Andrei Belyi (Balesene OÜ, Adjunct Professor at the University of Eastern Finland).  Mr Belyi addressed ‘New challenges to the liberal order:  reassessing controversies surrounding the Energy Charter Treaty’.

Andrei Belyi is an Adjunct Professor in Energy Law and Policy at the University of Eastern Finland.  He is also a founder of the energy consulting firm Balesene OU, based in Tallinn, Estonia. In 2005 he worked for the Energy Charter Secretariat, and subsequently produced a number of publications on the Energy Charter process, particularly on the positions adopted by Russia towards the Treaty. In 2008-9 he participated in policy discussions in Moscow whilst advocating against Russia’s withdrawal from provisional application of the Treaty. In 2011, he provided a consultancy report on the Draft Convention on energy security (an alternative to the ECT, proposed by the Russian Federation), and also advised EU Delegations in Moscow and Kiev on the subject. In 2017 he acted as an external expert to the Energy Charter Conference in Askhgabad, Turkmenistan.

Mr Belyi recently wrote a commentary entitled ‘New Challenges to the liberal world order: reassessing controversies surrounding the Energy Charter Treaty’.  This was published in Diplomaatia, a policy journal of the International Centre for Defense and Security, Tallinn, Estonia.

The event was chaired by Graham Coop, Partner at Volterra Fietta.  Mr Coop’s thirty-year legal career includes seven years as General Counsel to the Energy Charter Secretariat between 2004 and 2011.  Mr Coop has lectured and published extensively on the Energy Charter Treaty and acted as expert witness in investor-State arbitration proceedings in relation to its interpretation and legal effects.

Mr Coop is qualified as a barrister and solicitor in New Zealand and as a solicitor with higher rights of audience (Civil) in England and Wales. He advises and represents companies, governments and international organisations on international dispute resolution and public international law, with a particular focus on the energy, natural resources and infrastructure and banking sectors. He currently represents an EU member State in relation to banking measures taken in response to developments arising out of the 2008 global financial crisis.  He has appeared as counsel, advocate and expert before a wide range of international courts and tribunals, including the International Court of Justice, ICSID, the PCA and the ICC. He is on the UK Attorney General’s list of public international law practitioners.

For any queries regarding the content of the seminar, please email graham.coop@volterrafietta.com.