The mixed participation of the EU and its Member states to the Energy Charter Treaty and Italy’s withdrawal therefrom: consequences on the promotion and protection of foreign energy investments

Energy security is among the key issues in political agendas worldwide. Developed and developing economies, in fact, are increasingly concerned to secure constant flows of energy for fuelling their economic and social development. Despite there is no universally accepted definition of energy security, there is widespread consensus on that it relies, inter alia, on appropriate international instruments for promoting and, more important, protecting cross-border energy investments. Energy investments, effectively, are capital-intensive, long-lasting and highly-risky. This is particularly so as far as foreign energy investments are concerned. Investors investing in foreign Countries, in fact, are particularly exposed to non-commercial risks such as nationalizations, expropriations or discriminatory treatments. In order to carry out their investments and, more important, to protect them, therefore, said investors require proper guarantees on that their activities will not be undermined by unjustified or unreasonable measures which may be put into place by the host States. Of paramount importance, to this respect, is the prevision of impartial mechanisms for the settlement of disputes that may arise between foreign investors and host States concerning the activities carried out by the former in the territory of the latter. Indeed, a response to this need is represented by international arbitration, by which possible conflicts are settled by arbitral tribunals external to the host States’ judicial systems. In the course of time, international law has provided for numerous instruments by which promoting and protecting foreign energy investments. The Energy Charter Treaty (ECT or “Treaty”) is the most relevant instrument to this regard, considering its geographical scope and the matters treated therein. As such, it represents the main attempt to provide for global rules on energy security. The ECT, in fact, encourages the energy cooperation between its around fifty Contracting Parties in a wide range of sectors, such as trade, transit, environmental protection and investment promotion and protection. As regards investment promotion and protection, the ECT provides for a regime which is unique at the international level. It safeguards energy investments by providing, in particular, for fair and equitable treatment, most constant protection and security, no discrimination and most favoured nation treatment standards. A major feature of the ECT investment regime is the prevision of an investor-State dispute settlement (ISDS) mechanism, laid down in Art. 26, by which investors can bring claims before international arbitral tribunals for alleged breaches of ECT investment commitments which undermine the investments made by them in host Countries. Since the first dispute was filed on April 2001, namely AES Summit Generation Limited v. Republic of Hungary (ICSID Case No. ARB/01/4), nearly a hundred and seventeen arbitral proceedings have been incepted so far, eighty of which – amounting to about the 70% of all cases – have been commenced during the last six years. A state of things suggesting how the Treaty’s ISDS regime, after a slow start, has become an important tool by which energy investors can protect their investments. Notwithstanding such a remarkable achievement, however, there are many shortcomings that prevent the ECT from becoming the reference legal framework for international energy security. To this respect, it is worth mentioning the non-participation of major economies such as the USA and China and the decision of Russia to not ratify the Treaty after having applied it provisionally until 2009. In addition, it is worth highlighting also the decision of Italy to withdraw – first and unique case – starting from 1 January 2016. The withdrawal took effect during a turning point of the ECT: by that time, the ISDS mechanism had just started to be fully-tested by investors, especially within the EU context; in addition, the Treaty was experiencing a process of relaunching and updating which culminated with the adoption of the International Energy Charter, a political declaration aimed at bringing the ECT in line with current challenges in energy security. While Italy’s withdrawal undisputedly undermined the authority of the Treaty, it had the merit of reviving the doctrinal debate on unsettled and not entirely explored issues concerning its application, especially within the EU context. To this respect, the issues posed by the mixed accession of the EU and its Member States to the ECT stand out. For long, the doctrine has pointed out many interpretative concerns about to what extent the Treaty, in particular the investment regime and, more specifically, its ISDS mechanism, applies to relations between EU Member States and between them and the EU. Following the Italian withdrawal, such issues have gained new momentum and are likely to be explored more in depth in the foreseeable future. This thesis examines three broad subjects: the attempt of the ECT to become the reference set of rules on international energy security; the many issues posed by the mixed accession of the EU and its Member States to it; the implications of the Italian withdrawal in terms of investment promotion and protection. Accordingly, this work consists of three chapters. Chapter I provides for an overview of the ECT as the reference set of rules on international energy security. To this respect, it describes the main steps of the Energy Charter process, i.e. the process that, starting with the European Energy Charter of 1991 and arriving to the International Energy Charter of 2015, led to the adoption of the ECT on 1994 and its entering into force on 1998. Moreover, the chapter describes the main fields of energy cooperation dealt with by the ECT, markedly trade, transit and, more important, investment promotion and protection. The purpose of the chapter is to point out the importance of the Treaty for the promotion and protection of energy investments and the complex issues that prevent its vocation to become the reference international framework for global energy security. Chapter II focuses on the complex procedural issues that the mixed accession of the EU and its Member States poses with respect to the ECT ISDS mechanism. After having examined the status of the EU as a REIO party to the ECT, the qualification of the latter as a “mixed agreement” under EU law and the division of competences within the EU on the matters dealt with by it, the chapter focuses on the following issues: questions of international responsibility of the EU and its Member States for the performance and for breaches of ECT investment provisions; the applicability of the ECT investment regime and, more specifically, its ISDS mechanism, to EU internal relations; the relevance and, more specifically, the applicability of EU law in investor-State disputes filed under Art. 26; the relationship between EU law and the ECT. Chapter III deals, in the first place, with Italy’s withdrawal from the ECT. More precisely, the chapter investigates the reasons of the withdrawal and its consequences in terms of investment promotion and protection and on the future of the Energy Charter process. In the second place, the chapter examines the disputes filed against the Italian State under Art. 26. To this regard, after having taken into account the wider context of the ECT ISDS regime and the reasons of the sudden raise of disputes against Italy, it focuses on two cases, namely Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v. Italian Republic (ICSID Case No. ARB/14/3) and Eskosol S.p.A. in liquidazione v. Italian Republic (ICSID Case No. ARB/15/50). Both cases are still pending. As to earlier, which is the first case filed against Italy under Art. 26 ECT, an award has been rendered by the tribunal established to settle the dispute. Currently, a proceeding for annulment of the award is underway. Regarding the latter, a decision on an application under Rule 41(5) of the ICSID Rules of Procedures for Arbitration Proceedings has been rendered by the tribunal constituted to settle the controversy. Finally, the work is closed by some conclusive remarks with respect to the matters treated therein. As it will be seen, the issues discussed in this thesis have found – and indeed are increasingly founding – much attention in academic and specialised literature, since they touch very sensitive questions of international, EU and national law. Said issues, however, are far from being comprehensively investigated by the doctrine. As things stand, in the course of the analysis, the state of the art of the doctrinal debate will be taken into account first. Then, the issues at hand will be examined in light of relevant ECT case law. To this respect, some of the awards and decisions rendered by ECT arbitral tribunals – notably those established to settle disputes involving EU Member States and investors therefrom – will be examined with particular attention. By following this methodology, it will be possible to appreciate how said issues emerge or are likely to emerge in investment disputes and are or are likely to be dealt with by ECT arbitral tribunals. In other words, it will be possible to appreciate how said issues affect, in practice, the ECT and process. The aim of the present investigation is to contribute to the debate on the ECT and process, a debate which has just started, and which is likely to get academics and practitioners busy in the future. To this respect, it must be highlighted that ECT practice, now more than ever, is in a state of constant evolution. As a result, additional food for thought is likely to emerge in the future. Indeed, this work is the result of a research started in February 2015 at the Centre for Climate Change, Energy and Environmental Law of the University of Eastern Finland and completed in Rome on August 2018. In the intervening period, subsequent decisions and awards rendered by ECT arbitral tribunals as well as by the Court of Justice of the EU – namely the Achmea Judgement rendered on March 2018 – shed some light on the issues discussed in this work while at the same time raised new questions and interpretative concerns, with the result that a constant work of adaption has been necessary in order to take into account the latest developments on the matter. Accordingly, this work can be seen as a starting point for addressing the many interpretative issues which affect the ECT and which will assume further complexity as far as new awards and decisions are rendered by ECT arbitral tribunals.