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University of Groningen Modernizing the Energy Charter Treaty Verburg University of Groningen Modernizing the Energy Charter Treaty Verburg, Cees DOI: 10.33612/diss.109697150 IMPORTANT NOTE: You are advised to consult the publisher's version (publisher's PDF) if you wish to cite from it. Please check the document version below. Document Version Publisher's PDF, also known as Version of record Publication date: 2020 Link to publication in University of Groningen/UMCG research database Citation for published version (APA): Verburg, C. (2020). Modernizing the Energy Charter Treaty: facilitating foreign investment in the renewable energy sector. University of Groningen. https://doi.org/10.33612/diss.109697150 Copyright Other than for strictly personal use, it is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), unless the work is under an open content license (like Creative Commons). The publication may also be distributed here under the terms of Article 25fa of the Dutch Copyright Act, indicated by the “Taverne” license. More information can be found on the University of Groningen website: https://www.rug.nl/library/open-access/self-archiving-pure/taverne- amendment. Take-down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Downloaded from the University of Groningen/UMCG research database (Pure): http://www.rug.nl/research/portal. For technical reasons the number of authors shown on this cover page is limited to 10 maximum. Download date: 05-10-2021 Modernizing the Energy Charter Treaty – Facilitating Foreign Investment in the Renewable Energy Sector Cees Verburg 2019 Cees_Binnenwerk.indd 1 04/12/2019 11:35:55 Modernizing the Energy Charter Treaty – Facilitating Foreign Investment in the Renewable Energy Sector ISBN/EAN: 978-94-6375-685-3 Copyright © 2019 Cees Verburg All rights reserved. No part of this thesis may be reproduced, stored or transmitted in any way or by any means without the prior permission of the author, or when applicable, of the publishers of the scientific papers. Cover design by Birgit Vredenburg Layout and design by Birgit Vredenburg, persoonlijkproefschrift.nl. Printed by Ridderprint BV | www.ridderprint.nl Cees_Binnenwerk.indd 2 04/12/2019 11:35:55 Cees_Binnenwerk.indd 3 04/12/2019 11:35:56 Supervisors Assessment Committee Prof. M.M. Roggenkamp Prof. M.M.T.A. Brus Prof. R. Leal-Arcas Prof. E.C.P.D.C. De Brabandere Prof. P. Merkouris Cees_Binnenwerk.indd 4 04/12/2019 11:35:56 Cees_Binnenwerk.indd 5 04/12/2019 11:35:56 Cees_Binnenwerk.indd 6 04/12/2019 11:35:56 Voor Inge Cees_Binnenwerk.indd 7 04/12/2019 11:35:56 I. ACKNOWLEDGEMENTS Writing a PhD dissertation can best be compared to the weather. When you start, with many years still to go and no deadlines in sight, the skies are clear and happy days are abound. However, when the years go by and the deadline comes closer, clouds gather. Clouds that increasingly adopt a dark(er) shade of color. There is, or at least so it feels, no escape from these increasingly dark clouds. You can go on vacation to a sunny destination, but as long as your dissertation does not write itself, all will be to little avail. Although this sounds much more gruesome than it really was – and the book that you are holding means that I have (almost) made it – I could not have finished this project without the help and support of many. Without attempting to provide an exhaustive overview of all those who helped, guided and inspired me along the way, a few people deserve some specific attention. In the first place, I would like to express my gratitude for the support and supervision that I received from my supervisors, Martha Roggenkamp, Marcel Brus, and Ruven Fleming. I have experienced the whole process of writing a dissertation as a rather pleasant one and you all played a major role in that. Also, I am appreciative for the many opportunities you gave me throughout the years for lectures, presentations and publications. Over the last four years I was blessed with many great colleagues at the faculty of law, the department of Transboundary Legal Studies and especially the Groningen Centre of Energy Law. I have always enjoyed the working atmosphere and for that I thank you all. A special thanks goes to Stibbe – in particular Martin in de Braekt and the late Wouter Geldhof – and the Dutch Energy Law Association (NeVER) – especially René van ‘t Hoft – for making this research project possible. Since working in academia can be a rather lonesome affair I always highly appreciated the close ties to practice. In fact, it is safe to say that the experiences of the last few years contributed significantly to the choice for the next step in my career. I am also indebted to those who helped me in the final stages of my PhD, such as the proofreaders Frank, Sander, and Inge as well as Jaap and Joris for assisting me during the moment of truth. Cees_Binnenwerk.indd 8 04/12/2019 11:35:56 Penultimately, I would like to thank my parents, Johan and Cathrien, for their hospitality during the last four years. At times they must have considered me as a boomerang child. It goes without saying that working in Groningen and living in The Hague would have been much more challenging if it meant commuting back and forth. Thanks to your hospitality, this was not necessary. Finally, I would like to thank my wife Inge. I know that my many absences from home over the last years were not always easy, let alone the ideal start of a marriage. I will always be grateful for your support. Cees Verburg The Hague, August 2019 Cees_Binnenwerk.indd 9 04/12/2019 11:35:56 II. ABRIDGED TABLE OF CONTENTS i. Acknowledgements 8 ii. Abridged Table of Contents 10 iii. Extended Table of Contents 12 iv. List of Abbreviations 17 v. Table of Cases 21 vi. Table of Treaties and Other Relevant International Instruments 43 vii. Table of EU and Domestic Legislation 56 1. Introduction and Research Design 60 1.1. Research Objective and Contribution 64 1.2. Research Question 66 1.3. Research Design 69 1.4. Delineation and Limitations 75 2. Economic Theoretical Framework of Investment and Trade 80 Agreements 2.1. Macro-Economic Theories: Investment and Trade 81 2.2. Micro-Economic Theories 88 2.3. The Notion of Transaction Costs 92 2.4. Cost of Capital 93 2.5. Conclusion 96 3. The Energy Sector and Renewable Energy Sources 100 3.1. The Organization of the Energy Sector and Challenges for the 100 Energy Transition 3.2. Investors in the Renewable Energy Sector 104 3.3. The Interrelatedness of Investment and Trade in the Renewable 109 Energy Sector 3.4. Barriers to Investment and Trade in the Renewable Energy Sector 114 3.5. Political and Regulatory Risks in the Renewable Energy Sector: 124 The Case of Spain 3.6. Conclusion 128 4. The Energy Charter Treaty – Origin and Contemporary Relevance 132 4.1. Trade 135 4.2. Transit 137 4.3. Investment: Object, Purpose, and Scope of the Investment Chapter 139 4.4. Conclusion 150 5. Investment Protection in Part III of the Energy Charter Treaty 154 5.1. Stable, Equitable, Favorable and Transparent Investment 154 Conditions Cees_Binnenwerk.indd 10 04/12/2019 11:35:56 5.2. Fair and Equitable Treatment 157 5.3. Most Constant Protection and Security 187 5.4. Non-Impairment Standard 197 5.5. No Treatment Less Favorable than Required by International Law 213 5.6. Umbrella Clause 217 5.7. National- and Most Favored Nation Treatment 236 5.8. Effective Means Clause 245 5.9. Compensation for Losses 253 5.10. Expropriation 255 5.11. Conclusion 281 6. Investment Promotion in Part III of the Energy Charter Treaty 286 6.1. Liberalization of FDI 286 6.2. Transfer of Funds 293 6.3. Trade Related Investment Measures 298 6.4. Key Personnel 310 6.5. Conclusion 314 7. Carve-out and Exceptions 318 7.1. Taxation 318 7.2. General Exceptions 328 7.3. Conclusion 335 8. Facilitating Renewable Energy Investments: The Lege Ferenda 338 8.1. Shortcomings in the Existing Legal Framework of the ECT 338 8.2. Investment Protection 340 8.3. Investment Promotion in the Renewable Energy Sector 345 8.4. Conclusion 362 9. Legal Tools Available to Modernize the Energy Charter Treaty 366 9.1. Changing or Supplementing the Substantive Rules 366 9.2. Clarifying the Content of Existing Rules 369 9.3. Conclusion 378 10. Recommendations and Conclusion 382 10.1. Investment Protection 384 10.2. Investment Promotion 387 10.3. Comprehensive Agreement on RES Investment and Trade 391 10.4. Epilogue 392 Bibliography 394 Nederlandse Samenvatting 432 Summary 435 Curriculum Vitae 436 Cees_Binnenwerk.indd 11 04/12/2019 11:35:56 III. EXTENDED TABLE OF CONTENTS i. Acknowledgements 8 ii. Abridged Table of Contents 10 iii. Extended Table of Contents 12 iv. List of Abbreviations 17 v. Table of Cases 21 vi. Table of Treaties and Other Relevant International Instruments 43 vii. Table of EU and Domestic Legislation 56 1. Introduction and Research Design 60 1.1. Research Objective and Contribution 64 1.2. Research Question 66 1.2.1. Sub-Questions 67 1.3. Research Design 69 1.3.1. Theoretical Assessment Framework 69 1.3.2. Comparative Approach 69 1.3.3. Interpreting the Law and Establishing its Content 70 1.3.4. Practical Research Methods Employed 71 1.4. Delineation and Limitations 75 2.
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