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THE ENERGY CHARTER TREATY (ECT) Assessing Its Geopolitical, Climate and Financial Impacts the ENERGY CHARTER TREATY (ECT) 2

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THE ENERGY CHARTER TREATY (ECT) Assessing Its Geopolitical, Climate and Financial Impacts the ENERGY CHARTER TREATY (ECT) 2 THE ENERGY CHARTER TREATY (ECT) Assessing its geopolitical, climate and financial impacts THE ENERGY CHARTER TREATY (ECT) 2 THE ENERGY CHARTER TREATY (ECT) IN NUTSHELLS THE “RAISON D’ÊTRE” OF THE ECT regime encourage investors to shift onto taxpayers the IS NO LONGER THERE financial risk that would result from investments in fossil fuels. The original objective of the ECT was quite rightly to overcome the political and economic divisions between Various options can be considered for the modernisation Eastern and Western Europe as well as to strengthen of the ECT. Signatories of the Treaty could decide to not Europe’s energy security. It was vital for Europe to secure make any changes to the protection of fossil fuel invest- the access to fossil fuels resources of the former Soviet ments under the ECT regime. In the no-ECT changes regions by protecting the needed investment in these scenario, the “regulatory chill” effect of the ECT would countries. However, the emergence of new global, discourage governments from aligning their regulations regional and bilateral treaties and partnerships, since with the required climate targets under the Paris the entry into force of the ECT in 1998, questions the agreement leading to cumulative emissions of 148 Gt CO2 “raison d’être” of the ECT. This is particularly true as protected by the Treaty by 2050. This is equivalent Europe’s energy security in a warming planet must be to almost five times the remaining EU carbon budget secured increasingly by endogenous energy savings and 35% of the remaining global carbon budget over the and renewables and not by imported fossil fuels. period 2018-2050. Almost 90% of the ECT signatories are members of the Another modernisation option could be to introduce the World Trade Organisation (WTO). Russia, with its ex- right for governments to regulate which would lower the tensive reserves of oil and natural gas, withdrew from costs for compensations due to regulatory changes, but the ECT in 2009 and swapped its provisional application fossil fuels will be kept in the list of energy materials of the ECT for WTO membership. Most of Eastern Eu- and products protected by the ECT. Thus, investors can ropean countries are either members of the European still challenge regulations and policy measures and claim Union or signatories of the Energy Community Treaty huge compensations. The aim of this scenario is to foster which aims at building an integrated and sustainable trade among ECT signatories. In the trade scenario, pan-European energy market by extending the EU energy cumulative CO2 emissions protected by the ECT by 2050, acquis to neighbouring eastern countries. Furthermore, would be 98 GtCO2. This is more than three times of the the over-protection of the economic interests of foreign remaining EU carbon budget and 23% of the remaining investors by the ECT regime conflicts with the EU law global carbon budget over the period 2018-2050. The no- which aims at protecting public interests and EU citizens ECT changes scenario and the trade scenario will both who are expected to bear the cost of the long-term car- put climate and sustainability goals at risk as cumulative bon neutrality target. CO2 emissions protected by the ECT would add to the al- ready committed CO2 emissions since its entry into force. The carbon neutrality target requires governments to CLIMATE AND SUSTAINABILITY GOALS consider ending investment protection for fossil fuels. In ARE THREATENED BY THE ECT PROTECTION this scenario, foreign investment in the energy sector will OF FOSSIL FUELS INVESTMENTS have to align with the 1.5°C target and cumulative CO2 emissions protected by the ECT by 2050 would be limited CO2 emissions from fossil fuels investments are actually to those already committed since the entry into force of protected by the ECT. Since its entry into force in 1998, the ECT. cumulative emissions protected by the ECT are estimated at 57 Gt CO2 out of which 61% are committed CO2 emissions from intra-ECT investment in fossil fuels. ARBITRATION TRIBUNALS UNDER THE ECT REGIME This is almost double of the remaining EU carbon budget, WILL INCREASE THE DECARBONISATION’S COST for the period 2018-2050, to limit the overshoot of the FOR THE TAXPAYER 1.5°C target. The continuation of investment protection of fossil fuels will further threaten global climate and The role of the ECT in attracting foreign investors is yet sustainability goals. Arbitration tribunals under the ECT to be proven as shown by the Italian case. Since Italy’s THE ENERGY CHARTER TREATY (ECT) 3 withdrawal from the ECT, foreign direct investments to investors as arbitral tribunals decisions are unpredict- (FDIs) did not stop and average annual FDIs are around able and do not consider public interests when assessing €3 billion. However, the use of taxpayers’ money to investors’ claims. compensate foreign investors, under the ECT regime Investments in renewables represented one fifth of for changes in regulations, has been demonstrated by the total amount of investments protected by the ECT. the known 124 Investment-State-Dispute-Settlement However, ISDS cases related to renewables, which are (ISDS), under the ECT regime. ISDS cases in Italy and mainly due to changes in feed-in-tariff in Spain, Italy Russia occurred after their withdrawal as the investment and Czech Republic, represent so far more than 80% out protection under the ECT continues to apply twenty years of the known ECT ISDS cases. Most of ISDS renewable after withdrawing. Furthermore, 70% of the known ISDS disputes under the ECT regime are intra-EU disputes. disputes under the ECT regime are intra-EU as intra-EU In theory, they should be settled under the EU law. investments protected by the ECT represent 82% of total However, as the ECT is considered a more favourable investments protected by the Treaty. regime to investors, ISDS is the privileged option by investors to settle disputes. More than half of the total investments protected by the ECT are investments in fossil fuels. These investments are at risk of becoming stranded assets by 2050 and to CARBON NEUTRALITY TARGET increase the compensation costs governments would AND CLIMATE JUSTICE OBJECTIVE have to pay to investors for changes in regulation. REQUIRE ENDING THE ECT ERA Signatories of the ECT who have already adopted/ announced their carbon neutrality target will have to The energy context has changed significantly since the allocate part of their public budget to compensate foreign ECT was negotiated. Efforts to decarbonise the global investors for the “legitimate” expected revenues inves- energy system need to be strengthened and accelerated tors may lose due to adaptation of current regulations and carbon neutrality target must be achieved earlier to the 1.5°C target. Based on the known compensation than 2050 given the climate urgency. Meeting global for losses, governments may have to pay billions of Euros climate and sustainability goals requires a paradigm shift in policies and regulations in order to retire fossil fuels infrastructures at a global level. The “regulatory chill” effect of the ECT due to governments’ fear of ISDS procedures and their costs may water down any new (1) At any time after five years from the date on which legislation aiming at the carbon neutrality objective or this Treaty has entered into force for a Contracting simply prevent ECT signatories to regulate. Party, that Contracting Party may give written notification to the Depository of its withdrawal from Phasing-out investment protection for fossil fuels is, the Treaty. obviously, the only option ECT signatories should be (2) Any such withdrawal shall take effect upon the considering if they aim to implement the Paris Climate expiry of one year after the date of the receipt of the Agreement. However, this is unlikely to happen as ISDS, notification by the Depository, or on such later date the most contentious issue under the ECT regime, is not as may be specified in the notification of withdrawal. explicitly included in the items agreed for the discussion on the modernisation of the Treaty, nor is mentioned the (3) The provisions of this Treaty shall continue to phase-out of investment protection to fossil fuels under apply to investments made in the area of a Contract- the ECT regime to ensure the carbon neutrality target ing Party by investors of other Contracting Parties will be met by ECT signatories. or in other area of other Contracting Parties by investors of that Contracting Party as of the date The gap in the climate ambition among ECT signato- that Contracting Party’s withdrawal from the Treaty ries and the required unanimity vote, for any proposed takes effect for a period of 20 years from such date. amendment to the Treaty, of all ECT signatories make (4) All protocols to which a Contracting Party is party it unlikely that countries with carbon neutrality target shall cease to be in force for that Contracting succeed, after several years of negotiations, in phas- Party on the effective date of its withdrawal from ing-out fossil fuels protection and ISDS mechanisms this Treaty. from the ECT regime. Entering into endless negotiations would increase cumulative carbon emissions protected ECT Article 47 on Widrawal by the ECT. The only option left for countries with carbon neutrality targets is to withdraw from the Treaty. THE ENERGY CHARTER TREATY (ECT) 4 UNDERSTANDING THE ENERGY CHARTER TREATY The Energy Charter Treaty (ECT) is a multilateral agreement aiming at establishing a legal framework to promote long-term cooperation in the energy field. The ECT grants binding protection for foreign investors including Fair and Equitable Treatment (FTE) and most Favoured Nation Treatment (FNT) as well as compensation for losses and protection against expropriation, both direct and indirect ones.
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