Energy Charter Treaty (ECT) [*]
Date enacted: 1994-12-17
In force: 1998-04-24
Content
- Part I - Definitions and purpose
- Part II - Commerce
- Part III - Investment promotion and protection
- Part IV - Miscellaneous provisions
- Part V - Dispute settlement
- Part VI - Transitional provisions
- Part VII - Structure and institutions
- Part VIII - Final provisions
The Contracting Parties to this Treaty,
Having regard to the Charter of Paris for a New Europe signed on 21 November 1990;
Having regard to the European Energy Charter adopted in the Concluding Document of the Hague Conference on the European Energy Charter signed at The Hague on 17 December 1991;
Recalling that all signatories to the Concluding Document of the Hague Conference undertook to pursue the objectives and principles of the European Energy Charter and implement and broaden their co-operation as soon as possible by negotiating in good faith an Energy Charter Treaty and Protocols, and desiring to place the commitments contained in that Charter on a secure and binding international legal basis;
Desiring also to establish the structural framework required to implement the principles enunciated in the European Energy Charter;
Wishing to implement the basic concept of the European Energy Charter initiative which is to catalyse economic growth by means of measures to liberalize investment and trade in energy;
Affirming that Contracting Parties attach the utmost importance to the effective implementation of full national treatment and most favoured nation treatment, and that these commitments will be applied to the Making of Investments pursuant to a supplementary treaty;
Having regard to the objective of progressive liberalization of international trade and to the principle of avoidance of discrimination in international trade as enunciated in the Agreement Establishing the World Trade Organization and as otherwise provided for in this Treaty;
Determined progressively to remove technical, administrative and other barriers to trade in Energy Materials and Products and Energy-Related Equipment, technologies and services;
Looking to the eventual membership in the World Trade Organization of those members thereof which are not currently parties thereto and concerned to provide interim trade arrangements which will assist those Contracting Parties and not impede their preparation for such membership;
Mindful of the rights and obligations of certain Contracting Parties which are also the members of the World Trade Organization;
Having regard to competition rules concerning mergers, monopolies, anti-competitive practices and abuse of dominant position;
Having regard also to the Treaty on the Non-Proliferation of Nuclear Weapons, the Nuclear Suppliers Guidelines and other international nuclear non-proliferation obligations or understandings;
Recognizing the necessity for the most efficient exploration, production, conversion, storage, transport, distribution and use of energy;
Recalling the United Nations Framework Convention on Climate Change, the Convention on Long- Range Transboundary Air Pollution and its protocols, and other international environmental agreements with energy-related aspects; and
Recognizing the increasingly urgent need for measures to protect the environment, including the decommissioning of energy installations and waste disposal, and for internationally-agreed objectives and criteria for these purposes,
Have Agreed as Follows:
Part I - Definitions and purpose
Article 1
Definitions
As used in this Treaty:
1. |
"Charter" means the European Energy Charter adopted in the Concluding Document of the Hague Conference on the European Energy Charter signed at The Hague on 17 December 1991; signature of the Concluding Document is considered to be signature of the Charter. |
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2. |
"Contracting Party" means a state or Regional Economic Integration Organization which has consented to be bound by this Treaty and for which the Treaty is in force. |
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3. |
"Regional Economic Integration Organization" means an organization constituted by states to which they have transferred competence over certain matters a number of which are governed by this Treaty, including the authority to take decisions binding on them in respect of those matters. |
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4. |
"Energy Materials and Products", based on the Harmonised System of the World Customs Organization and the Combined Nomenclature of the European Communities, means the items included in Annexes EM I or EM II. |
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4bis. |
"Energy-Related Equipment", based on the Harmonised System of the World Customs Organization, means the items included in Annexes EQ I or EQ II. |
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5. |
"Economic Activity in the Energy Sector" means an economic activity concerning the exploration, extraction, refining, production, storage, land transport, transmission, distribution, trade, marketing, or sale of Energy Materials and Products except those included in Annex NI, or concerning the distribution of heat to multiple premises.[2] |
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6. |
"Investment" means every kind of asset, owned or controlled directly or indirectly by an Investor and includes:[3]
A change in the form in which assets are invested does not affect their character as investments and the term "Investment" includes all investments, whether existing at or made after the later of the date of entry into force of this Treaty for the Contracting Party of the Investor making the investment and that for the Contracting Party in the Area of which the investment is made (hereinafter referred to as the "Effective Date") provided that the Treaty shall only apply to matters affecting such investments after the Effective Date. "Investment" refers to any investment associated with an Economic Activity in the Energy Sector and to investments or classes of investments designated by a Contracting Party in its Area as "Charter efficiency projects" and so notified to the Secretariat. |
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7. |
"Investor" means:
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8. |
"Make Investments" or "Making of Investments" means establishing new Investments, acquiring all or part of existing Investments or moving into different fields of Investment activity.[5] |
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9. |
"Returns" means the amounts derived from or associated with an Investment, irrespective of the form in which they are paid, including profits, dividends, interest, capital gains, royalty payments, management, technical assistance or other fees and payments in kind. |
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10. |
"Area" means with respect to a state that is a Contracting Party:
With respect to a Regional Economic Integration Organization which is a Contracting Party, Area means the Areas of the member states of such Organization, under the provisions contained in the agreement establishing that Organization. |
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11. |
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12. |
"Intellectual Property" includes copyrights and related rights, trademarks, geographical indications, industrial designs, patents, layout designs of integrated circuits and the protection of undisclosed information.[6] |
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13. |
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14. |
"Freely Convertible Currency" means a currency which is widely traded in international foreign exchange markets and widely used in international transactions. |
[2] |
See Final Act of the European Energy Charter Conference, Understandings, 2. |
[3] |
See Final Act of the European Energy Charter Conference, Understandings, 3; and Final Act of the European Energy Charter Conference, Declarations. |
[4] |
See Decision with respect to the Energy Charter Treaty (Annex 2 to the Final Act of the European Energy Charter Conference), 5. |
[5] |
See Final Act of the European Energy Charter Conference, Understandings, 4. |
[6] |
See Final Act of the European Energy Charter Conference, Understandings, 5. |
Article 2
Purpose of the Treaty
This Treaty establishes a legal framework in order to promote long-term co-operation in the energy field, based on complementarities and mutual benefits, in accordance with the objectives and principles of the Charter.
Part II - Commerce
Article 3
International markets
The Contracting Parties shall work to promote access to international markets on commercial terms, and generally to develop an open and competitive market, for Energy Materials and Products and Energy-Related Equipment.
Article 4
Non-derogation from WTO Agreement
Nothing in this Treaty shall derogate, as between particular Contracting Parties which are members of the WTO, from the provisions of the WTO Agreement as they are applied between those Contracting Parties.
Article 5
Trade-related investment measures[7]
1. |
A Contracting Party shall not apply any trade-related investment measure that is inconsistent with the provisions of article III or XI of the GATT 1994; this shall be without prejudice to the Contracting Party's rights and obligations under the WTO Agreement and Article 29.[8] |
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2. |
Such measures include any investment measure which is mandatory or enforceable under domestic law or under any administrative ruling, or compliance with which is necessary to obtain an advantage, and which requires:
or which restricts:
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3. |
Nothing in paragraph (1) shall be construed to prevent a Contracting Party from applying the trade-related investment measures described in subparagraphs (2)(a) and (c) as a condition of eligibility for export promotion, foreign aid, government procurement or preferential tariff or quota programmes.[9] |
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4. |
Notwithstanding paragraph (1), a Contracting Party may temporarily continue to maintain trade-related investment measures which were in effect more than 180 days before its signature of this Treaty, subject to the notification and phase-out provisions set out in Annex TRM. |
[7] |
See Final Act of the European Energy Charter Conference, Declarations, 2. |
[8] |
See Final Act of the European Energy Charter Conference, Understandings, 6. |
[9] |
See Final Act of the European Energy Charter Conference, Declarations, 2. |
Article 6
Competition[10]
1. |
Each Contracting Party shall work to alleviate market distortions and barriers to competition in Economic Activity in the Energy Sector. |
2. |
Each Contracting Party shall ensure that within its jurisdiction it has and enforces such laws as are necessary and appropriate to address unilateral and concerted anti-competitive conduct in Economic Activity in the Energy Sector.[11] |
3. |
Contracting Parties with experience in applying competition rules shall give full consideration to providing, upon request and within available resources, technical assistance on the development and implementation of competition rules to other Contracting Parties. |
4. |
Contracting Parties may co-operate in the enforcement of their competition rules by consulting and exchanging information. |
5. |
If a Contracting Party considers that any specified anti-competitive conduct carried out within the Area of another Contracting Party is adversely affecting an important interest relevant to the purposes identified in this Article, the Contracting Party may notify the other Contracting Party and may request that its competition authorities initiate appropriate enforcement action. The notifying Contracting Party shall include in such notification sufficient information to permit the notified Contracting Party to identify the anti-competitive conduct that is the subject of the notification and shall include an offer of such further information and co-operation as the notifying Contracting Party is able to provide. The notified Contracting Party or, as the case may be, the relevant competition authorities may consult with the competition authorities of the notifying Contracting Party and shall accord full consideration to the request of the notifying Contracting Party in deciding whether or not to initiate enforcement action with respect to the alleged anti-competitive conduct identified in the notification. The notified Contracting Party shall inform the notifying Contracting Party of its decision or the decision of the relevant competition authorities and may if it wishes inform the notifying Contracting Party of the grounds for the decision. If enforcement action is initiated, the notified Contracting Party shall advise the notifying Contracting Party of its outcome and, to the extent possible, of any significant interim development.[12] |
6. |
Nothing in this Article shall require the provision of information by a Contracting Party contrary to its laws regarding disclosure of information, confidentiality or business secrecy. |
7. |
The procedures set forth in paragraph (5) and Article 27(1) shall be the exclusive means within this Treaty of resolving any disputes that may arise over the implementation or interpretation of this Article. |
[10] |
See Final Act of the European Energy Charter Conference, Understandings, 7. |
[11] |
See Article 32(1) and Annex T. |
[12] |
See Article 32(1) and Annex T. |
Article 7
Transit[13]
1. |
Each Contracting Party shall take the necessary measures to facilitate the Transit of Energy Materials and Products consistent with the principle of freedom of transit and without distinction as to the origin, destination or ownership of such Energy Materials and Products or discrimination as to pricing on the basis of such distinctions, and without imposing any unreasonable delays, restrictions or charges. |
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2. |
Contracting Parties shall encourage relevant entities to co-operate in:
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3. |
Each Contracting Party undertakes that its provisions relating to transport of Energy Materials and Products and the use of Energy Transport Facilities shall treat Energy Materials and Products in Transit in no less favourable a manner than its provisions treat such materials and products originating in or destined for its own Area, unless an existing international agreement provides otherwise. |
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4. |
In the event that Transit of Energy Materials and Products cannot be achieved on commercial terms by means of Energy Transport Facilities the Contracting Parties shall not place obstacles in the way of new capacity being established, except as may be otherwise provided in applicable legislation which is consistent with paragraph (1).[14] |
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5. |
A Contracting Party through whose Area Energy Materials and Products may transit shall not be obliged to
which it demonstrates to the other Contracting Parties concerned would endanger the security or efficiency of its energy systems, including the security of supply. Contracting Parties shall, subject to paragraphs (6) and (7), secure established flows of Energy Materials and Products to, from or between the Areas of other Contracting Parties. |
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6. |
A Contracting Party through whose Area Energy Materials and Products transit shall not, in the event of a dispute over any matter arising from that Transit, interrupt or reduce, permit any entity subject to its control to interrupt or reduce, or require any entity subject to its jurisdiction to interrupt or reduce the existing flow of Energy Materials and Products prior to the conclusion of the dispute resolution procedures set out in paragraph (7), except where this is specifically provided for in a contract or other agreement governing such Transit or permitted in accordance with the conciliator's decision. |
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7. |
The following provisions shall apply to a dispute described in paragraph (6), but only following the exhaustion of all relevant contractual or other dispute resolution remedies previously agreed between the Contracting Parties party to the dispute or between any entity referred to in paragraph (6) and an entity of another Contracting Party party to the dispute:
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8. |
Nothing in this Article shall derogate from a Contracting Party's rights and obligations under international law including customary international law, existing bilateral or multilateral agreements, including rules concerning submarine cables and pipelines. |
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9. |
This Article shall not be so interpreted as to oblige any Contracting Party which does not have a certain type of Energy Transport Facilities used for Transit to take any measure under this Article with respect to that type of Energy Transport Facilities. Such a Contracting Party is, however, obliged to comply with paragraph (4). |
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10. |
For the purposes of this Article:
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[13] |
See Final Act of the European Energy Charter Conference, Declarations, 3. |
[14] |
See Article 32(1) and Annex T. |
Article 8
Transfer of technology
1. |
The Contracting Parties agree to promote access to and transfer of energy technology on a commercial and non-discriminatory basis to assist effective trade in Energy Materials and Products and Investment and to implement the objectives of the Charter subject to their laws and regulations, and to the protection of Intellectual Property rights. |
2. |
Accordingly, to the extent necessary to give effect to paragraph (1) the Contracting Parties shall eliminate existing and create no new obstacles to the transfer of technology in the field of Energy Materials and Products and related equipment and services, subject to non-proliferation and other international obligations. |
Article 9
Access to capital[15]
1. |
The Contracting Parties acknowledge the importance of open capital markets in encouraging the flow of capital to finance trade in Energy Materials and Products and for the making of and assisting with regard to Investments in Economic Activity in the Energy Sector in the Areas of other Contracting Parties, particularly those with economies in transition. Each Contracting Party shall accordingly endeavour to promote conditions for access to its capital market by companies and nationals of other Contracting Parties, for the purpose of financing trade in Energy Materials and Products and for the purpose of Investment in Economic Activity in the Energy Sector in the Areas of those other Contracting Parties, on a basis no less favourable than that which it accords in like circumstances to its own companies and nationals or companies and nationals of any other Contracting Party or any third state, whichever is the most favourable.[16] |
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2. |
A Contracting Party may adopt and maintain programmes providing for access to public loans, grants, guarantees or insurance for facilitating trade or Investment abroad. It shall make such facilities available, consistent with the objectives, constraints and criteria of such programmes (including any objectives, constraints or criteria relating to the place of business of an applicant for any such facility or the place of delivery of goods or services supplied with the support of any such facility) for Investments in the Economic Activity in the Energy Sector of other Contracting Parties or for financing trade in Energy Materials and Products with other Contracting Parties. |
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3. |
Contracting Parties shall, in implementing programmes in Economic Activity in the Energy Sector to improve the economic stability and investment climates of the Contracting Parties, seek as appropriate to encourage the operations and take advantage of the expertise of relevant international financial institutions. |
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4. |
Nothing in this Article shall prevent:
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[15] |
See Final Act of the European Energy Charter Conference, Understandings, 9. |
[16] |
See Article 32(1) and Annex T. |
Part III - Investment promotion and protection
Article 10
Promotion, protection and treatment of investments[17]
1. |
Each Contracting Party shall, in accordance with the provisions of this Treaty, encourage and create stable, equitable, favourable and transparent conditions for Investors of other Contracting Parties to make Investments in its Area. Such conditions shall include a commitment to accord at all times to Investments of Investors of other Contracting Parties fair and equitable treatment. Such Investments shall also enjoy the most constant protection and security and no Contracting Party shall in any way impair by unreasonable or discriminatory measures their management, maintenance, use, enjoyment or disposal. In no case shall such Investments be accorded treatment less favourable than that required by international law, including treaty obligations.[18]Each Contracting Party shall observe any obligations it has entered into with an Investor or an Investment of an Investor of any other Contracting Party.[19] |
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2. |
Each Contracting Party shall endeavour to accord to Investors of other Contracting Parties, as regards the Making of Investments in its Area, the Treatment described in paragraph (3). |
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3. |
For the purposes of this Article, "Treatment" means treatment accorded by a Contracting Party which is no less favourable than that which it accords to its own Investors or to Investors of any other Contracting Party or any third state, whichever is the most favourable. |
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4. |
A supplementary treaty shall, subject to conditions to be laid down therein, oblige each party thereto to accord to Investors of other parties, as regards the Making of Investments in its Area, the Treatment described in paragraph (3). That treaty shall be open for signature by the states and Regional Economic Integration Organizations which have signed or acceded to this Treaty. Negotiations towards the supplementary treaty shall commence not later than 1 January 1995, with a view to concluding it by 1 January 1998.[20] |
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5. |
Each Contracting Party shall, as regards the Making of Investments in its Area, endeavour to:
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6. |
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7. |
Each Contracting Party shall accord to Investments in its Area of Investors of other Contracting Parties, and their related activities including management, maintenance, use, enjoyment or disposal, treatment no less favourable than that which it accords to Investments of its own Investors or of the Investors of any other Contracting Party or any third state and their related activities including management, maintenance, use, enjoyment or disposal, whichever is the most favourable.[21] |
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8. |
The modalities of application of paragraph (7) in relation to programmes under which a Contracting Party provides grants or other financial assistance, or enters into contracts, for energy technology research and development, shall be reserved for the supplementary treaty described in paragraph (4). Each Contracting Party shall through the Secretariat keep the Charter Conference informed of the modalities it applies to the programmes described in this paragraph. |
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9. |
Each state or Regional Economic Integration Organization which signs or accedes to this Treaty shall, on the date it signs the Treaty or deposits its instrument of accession, submit to the Secretariat a report summarizing all laws, regulations or other measures relevant to:
A Contracting Party shall keep its report up to date by promptly submitting amendments to the Secretariat. The Charter Conference shall review these reports periodically. In respect of subparagraph (a) the report may designate parts of the energy sector in which a Contracting Party accords to Investors of other Contracting Parties the Treatment described in paragraph (3). In respect of subparagraph (b) the review by the Charter Conference may consider the effects of such programmes on competition and Investments. |
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10. |
Notwithstanding any other provision of this Article, the treatment described in paragraphs (3) and (7) shall not apply to the protection of Intellectual Property; instead, the treatment shall be as specified in the corresponding provisions of the applicable international agreements for the protection of Intellectual Property rights to which the respective Contracting Parties are parties. |
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11. |
For the purposes of Article 26, the application by a Contracting Party of a trade-related investment measure as described in Article 5(1) and (2) to an Investment of an Investor of another Contracting Party existing at the time of such application shall, subject to Article 5(3) and (4), be considered a breach of an obligation of the former Contracting Party under this Part.[22] |
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12. |
Each Contracting Party shall ensure that its domestic law provides effective means for the assertion of claims and the enforcement of rights with respect to Investments, investment agreements, and investment authorizations. |
[17] |
See Final Act of the European Energy Charter Conference, Understandings, 9; and Declarations, 4. |
[18] |
See Final Act of the European Energy Charter Conference, Understandings, 17; and Chairman’s Statement at Adoption Session on 17 December 1994. |
[19] |
See Article 26(3)(c); Article 27(2) and Annex IA. |
[20] |
See Final Act of the European Energy Charter Conference, Understandings, 10; Declarations, 1; Chairman’s Statement at Adoption Session on 17 December 1994; and note 5. |
[21] |
See Decision with respect to the Energy Charter Treaty (Annex 2 to the Final Act of the European Energy Charter Conference), 2; and Annex T. |
[22] |
See Final Act of the European Energy Charter Conference, Declarations, 2. |
Article 11
Key personnel
1. |
A Contracting Party shall, subject to its laws and regulations relating to the entry, stay and work of natural persons, examine in good faith requests by Investors of another Contracting Party, and key personnel who are employed by such Investors or by Investments of such Investors, to enter and remain temporarily in its Area to engage in activities connected with the making or the development, management, maintenance, use, enjoyment or disposal of relevant Investments, including the provision of advice or key technical services. |
2. |
A Contracting Party shall permit Investors of another Contracting Party which have Investments in its Area, and Investments of such Investors, to employ any key person of the Investor's or the Investment's choice regardless of nationality and citizenship provided that such key person has been permitted to enter, stay and work in the Area of the former Contracting Party and that the employment concerned conforms to the terms, conditions and time limits of the permission granted to such key person. |
Article 12
Compensation for losses
1. |
Except where Article 13 applies, an Investor of any Contracting Party which suffers a loss with respect to any Investment in the Area of another Contracting Party owing to war or other armed conflict, state of national emergency, civil disturbance, or other similar event in that Area, shall be accorded by the latter Contracting Party, as regards restitution, indemnification, compensation or other settlement, treatment which is the most favourable of that which that Contracting Party accords to any other Investor, whether its own Investor, the Investor of any other Contracting Party, or the Investor of any third state. |
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2. |
Without prejudice to paragraph (1), an Investor of a Contracting Party which, in any of the situations referred to in that paragraph, suffers a loss in the Area of another Contracting Party resulting from
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Article 13
Expropriation
1. |
Investments of Investors of a Contracting Party in the Area of any other Contracting Party shall not be nationalized, expropriated or subjected to a measure or measures having effect equivalent to nationalization or expropriation (hereinafter referred to as "Expropriation") except where such Expropriation is:
Such compensation shall amount to the fair market value of the Investment expropriated at the time immediately before the Expropriation or impending Expropriation became known in such a way as to affect the value of the Investment (hereinafter referred to as the "Valuation Date"). Such fair market value shall at the request of the Investor be expressed in a Freely Convertible Currency on the basis of the market rate of exchange existing for that currency on the Valuation Date. Compensation shall also include interest at a commercial rate established on a market basis from the date of Expropriation until the date of payment. |
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2. |
The Investor affected shall have a right to prompt review, under the law of the Contracting Party making the Expropriation, by a judicial or other competent and independent authority of that Contracting Party, of its case, of the valuation of its Investment, and of the payment of compensation, in accordance with the principles set out in paragraph (1). |
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3. |
For the avoidance of doubt, Expropriation shall include situations where a Contracting Party expropriates the assets of a company or enterprise in its Area in which an Investor of any other Contracting Party has an Investment, including through the ownership of shares. |
Article 14
Transfers related to investments[23]
1. |
Each Contracting Party shall with respect to Investments in its Area of Investors of any other Contracting Party guarantee the freedom of transfer into and out of its Area, including the transfer of:
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2. |
Transfers under paragraph (1) shall be effected without delay and (except in case of a Return in kind) in a Freely Convertible Currency.[25] |
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3. |
Transfers shall be made at the market rate of exchange existing on the date of transfer with respect to spot transactions in the currency to be transferred. In the absence of a market for foreign exchange, the rate to be used will be the most recent rate applied to inward investments or the most recent exchange rate for conversion of currencies into Special Drawing Rights, whichever is more favourable to the Investor. |
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4. |
Notwithstanding paragraphs (1) to (3), a Contracting Party may protect the rights of creditors, or ensure compliance with laws on the issuing, trading and dealing in securities and the satisfaction of judgements in civil, administrative and criminal adjudicatory proceedings, through the equitable, non-discriminatory, and good faith application of its laws and regulations. |
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5. |
Notwithstanding paragraph (2), Contracting Parties which are states that were constituent parts of the former Union of Soviet Socialist Republics may provide in agreements concluded between them that transfers of payments shall be made in the currencies of such Contracting Parties, provided that such agreements do not treat Investments in their Areas of Investors of other Contracting Parties less favourably than either Investments of Investors of the Contracting Parties which have entered into such agreements or Investments of Investors of any third state.[26] |
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6. |
Notwithstanding subparagraph (1)(b), a Contracting Party may restrict the transfer of a Return in kind in circumstances where the Contracting Party is permitted under Article 29(2)(a) or the WTO Agreement to restrict or prohibit the exportation or the sale for export of the product constituting the Return in kind; provided that a Contracting Party shall permit transfers of Returns in kind to be effected as authorized or specified in an investment agreement, investment authorization, or other written agreement between the Contracting Party and either an Investor of another Contracting Party or its Investment. |
[23] |
See Decision with respect to the Energy Charter Treaty (Annex 2 to the Final Act of the European Energy Charter Conference), 3. |
[24] |
See Article 32(1) and Annex T. |
[25] |
See Decision with respect to the Energy Charter Treaty (Annex 2 to the Final Act of the European Energy Charter Conference), 4. |
[26] |
See Final Act of the European Energy Charter Conference, Understandings, 12. |
Article 15
Subrogation
1. |
If a Contracting Party or its designated agency (hereinafter referred to as the "Indemnifying Party") makes a payment under an indemnity or guarantee given in respect of an Investment of an Investor (hereinafter referred to as the "Party Indemnified") in the Area of another Contracting Party (hereinafter referred to as the "Host Party"), the Host Party shall recognize:
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2. |
The Indemnifying Party shall be entitled in all circumstances to:
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3. |
In any proceeding under Article 26, a Contracting Party shall not assert as a defence, counterclaim, right of set-off or for any other reason, that indemnification or other compensation for all or part of the alleged damages has been received or will be received pursuant to an insurance or guarantee contract. |
Article 16
Relation to other agreements[27]
Where two or more Contracting Parties have entered into a prior international agreement, or enter into a subsequent international agreement, whose terms in either case concern the subject matter of Part III or V of this Treaty,
1. |
nothing in Part III or V of this Treaty shall be construed to derogate from any provision of such terms of the other agreement or from any right to dispute resolution with respect thereto under that agreement; and |
2. |
nothing in such terms of the other agreement shall be construed to derogate from any provision of Part III or V of this Treaty or from any right to dispute resolution with respect thereto under this Treaty, |
where any such provision is more favourable to the Investor or Investment.
[27] |
See Decision with respect to the Energy Charter Treaty (Annex 2 to the Final Act of the European Energy Charter Conference), 1. |
Article 17
Non-application of Part III in certain circumstances
Each Contracting Party reserves the right to deny the advantages of this Part to:
1. |
a legal entity if citizens or nationals of a third state own or control such entity and if that entity has no substantial business activities in the Area of the Contracting Party in which it is organized; or |
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2. |
an Investment, if the denying Contracting Party establishes that such Investment is an Investment of an Investor of a third state with or as to which the denying Contracting Party:
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Part IV - Miscellaneous provisions
Article 18
Sovereignty over energy resources
1. |
The Contracting Parties recognize state sovereignty and sovereign rights over energy resources. They reaffirm that these must be exercised in accordance with and subject to the rules of international law. |
2. |
Without affecting the objectives of promoting access to energy resources, and exploration and development thereof on a commercial basis, the Treaty shall in no way prejudice the rules in Contracting Parties governing the system of property ownership of energy resources.[28] |
3. |
Each state continues to hold in particular the rights to decide the geographical areas within its Area to be made available for exploration and development of its energy resources, the optimalization of their recovery and the rate at which they may be depleted or otherwise exploited, to specify and enjoy any taxes, royalties or other financial payments payable by virtue of such exploration and exploitation, and to regulate the environmental and safety aspects of such exploration, development and reclamation within its Area, and to participate in such exploration and exploitation, inter alia, through direct participation by the government or through state enterprises. |
4. |
The Contracting Parties undertake to facilitate access to energy resources, inter alia, by allocating in a non-discriminatory manner on the basis of published criteria authorizations, licences, concessions and contracts to prospect and explore for or to exploit or extract energy resources. |
[28] |
See Final Act of the European Energy Charter Conference, Declarations, V; and Chairman’s Statement at Adoption Session on 17 December 1994. |
Article 19
Environmental aspects
1. |
In pursuit of sustainable development and taking into account its obligations under those international agreements concerning the environment to which it is party, each Contracting Party shall strive to minimize in an economically efficient manner harmful Environmental Impacts occurring either within or outside its Area from all operations within the Energy Cycle in its Area, taking proper account of safety. In doing so each Contracting Party shall act in a Cost- Effective manner. In its policies and actions each Contracting Party shall strive to take precautionary measures to prevent or minimize environmental degradation. The Contracting Parties agree that the polluter in the Areas of Contracting Parties, should, in principle, bear the cost of pollution, including transboundary pollution, with due regard to the public interest and without distorting Investment in the Energy Cycle or international trade. Contracting Parties shall accordingly:
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2. |
At the request of one or more Contracting Parties, disputes concerning the application or interpretation of provisions of this Article shall, to the extent that arrangements for the consideration of such disputes do not exist in other appropriate international fora, be reviewed by the Charter Conference aiming at a solution. |
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3. |
For the purposes of this Article:
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[29] |
See Final Act of the European Energy Charter Conference, Understandings, 13. |
Article 20
Transparency
1. |
Laws, regulations, judicial decisions and administrative rulings of general application which affect trade in Energy Materials and Products or Energy- Related Equipment are, in accordance with Article 29(2)(a), among the measures subject to the transparency disciplines of the WTO Agreement. |
2. |
Laws, regulations, judicial decisions and administrative rulings of general application made effective by any Contracting Party, and agreements in force between Contracting Parties, which affect other matters covered by this Treaty shall also be published promptly in such a manner as to enable Contracting Parties and Investors to become acquainted with them. The provisions of this paragraph shall not require any Contracting Party to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of any Investor. |
3. |
Each Contracting Party shall designate one or more enquiry points to which requests for information about the above mentioned laws, regulations, judicial decisions and administrative rulings may be addressed and shall communicate promptly such designation to the Secretariat which shall make it available on request.[30] |
[30] |
See Article 32(1) and Annex T. |
Article 21
Taxation
1. |
Except as otherwise provided in this Article, nothing in this Treaty shall create rights or impose obligations with respect to Taxation Measures of the Contracting Parties. In the event of any inconsistency between this Article and any other provision of the Treaty, this Article shall prevail to the extent of the inconsistency. |
||||||||||||
2. |
Article 7(3) shall apply to Taxation Measures other than those on income or on capital, except that such provision shall not apply to:
|
||||||||||||
3. |
Article 10(2) and (7) shall apply to Taxation Measures of the Contracting Parties other than those on income or on capital, except that such provisions shall not apply to:
|
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4. |
Article 29(2) to (8) shall apply to Taxation Measures other than those on income or on capital. |
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5. |
|
||||||||||||
6. |
For the avoidance of doubt, Article 14 shall not limit the right of a Contracting Party to impose or collect a tax by withholding or other means. |
||||||||||||
7. |
For the purposes of this Article:
|
Article 22
State and privileged enterprises[31]
1. |
Each Contracting Party shall ensure that any state enterprise which it maintains or establishes shall conduct its activities in relation to the sale or provision of goods and services in its Area in a manner consistent with the Contracting Party's obligations under Part III of this Treaty.[32] |
2. |
No Contracting Party shall encourage or require such a state enterprise to conduct its activities in its Area in a manner inconsistent with the Contracting Party's obligations under other provisions of this Treaty. |
3. |
Each Contracting Party shall ensure that if it establishes or maintains an entity and entrusts the entity with regulatory, administrative or other governmental authority, such entity shall exercise that authority in a manner consistent with the Contracting Party's obligations under this Treaty.[33] |
4. |
No Contracting Party shall encourage or require any entity to which it grants exclusive or special privileges to conduct its activities in its Area in a manner inconsistent with the Contracting Party's obligations under this Treaty. |
5. |
For the purposes of this Article, "entity" includes any enterprise, agency or other organization or individual. |
[31] |
See Final Act of the European Energy Charter Conference, Understandings, 14. |
[32] |
See Article 32(1). |
[33] |
See Article 32(1) and Annex T. |
Article 23
Observance by sub-national authorities[34]
1. |
Each Contracting Party is fully responsible under this Treaty for the observance of all provisions of the Treaty, and shall take such reasonable measures as may be available to it to ensure such observance by regional and local governments and authorities within its Area. |
2. |
The dispute settlement provisions in Parts II, IV and V of this Treaty may be invoked in respect of measures affecting the observance of the Treaty by a Contracting Party which have been taken by regional or local governments or authorities within the Area of the Contracting Party. |
[34] |
See Final Act of the European Energy Charter Conference, Understandings, 14. |
Article 24
Exceptions[35]
1. |
This Article shall not apply to Articles 12, 13 and 29. |
||||||||||||||||||
2. |
The provisions of this Treaty other than
provided that no such measure shall constitute a disguised restriction on Economic Activity in the Energy Sector, or arbitrary or unjustifiable discrimination between Contracting Parties or between Investors or other interested persons of Contracting Parties. Such measures shall be duly motivated and shall not nullify or impair any benefit one or more other Contracting Parties may reasonably expect under this Treaty to an extent greater than is strictly necessary to the stated end. |
||||||||||||||||||
3. |
The provisions of this Treaty other than those referred to in paragraph (1) shall not be construed to prevent any Contracting Party from taking any measure which it considers necessary:
Such measure shall not constitute a disguised restriction on Transit. |
||||||||||||||||||
4. |
The provisions of this Treaty which accord most favoured nation treatment shall not oblige any Contracting Party to extend to the Investors of any other Contracting Party any preferential treatment:
|
[35] |
See Final Act of the European Energy Charter Conference, Understandings, 15. |
[36] |
See Decision with respect to the Energy Charter Treaty (Annex 2 to the Final Act of the European Energy Charter Conference), 5. |
Article 25
Economic integration agreements[37]
1. |
The provisions of this Treaty shall not be so construed as to oblige a Contracting Party which is party to an Economic Integration Agreement (hereinafter referred to as "EIA") to extend, by means of most favoured nation treatment, to another Contracting Party which is not a party to that EIA, any preferential treatment applicable between the parties to that EIA as a result of their being parties thereto. |
2. |
For the purposes of paragraph (1), "EIA" means an agreement substantially liberalizing, inter alia, trade and investment, by providing for the absence or elimination of substantially all discrimination between or among parties thereto through the elimination of existing discriminatory measures and/or the prohibition of new or more discriminatory measures, either at the entry into force of that agreement or on the basis of a reasonable time frame. |
3. |
This Article shall not affect the application of the WTO Agreement according to Article 29. |
[37] |
See Final Act if the European Energy Charter Conference, Declarations, 5; and Decisions with respect to the Energy Charter Treaty (Annex 2 to the Final Act of the European Energy Charter Conference), 5. |
Part V - Dispute settlement[38]
Article 26
Settlement of disputes between an investor and a Contracting Party[39]
1. |
Disputes between a Contracting Party and an Investor of another Contracting Party relating to an Investment of the latter in the Area of the former, which concern an alleged breach of an obligation of the former under Part III shall, if possible, be settled amicably. |
||||||||||
2. |
If such disputes can not be settled according to the provisions of paragraph (1) within a period of three months from the date on which either party to the dispute requested amicable settlement, the Investor party to the dispute may choose to submit it for resolution:
|
||||||||||
3. |
|
||||||||||
4. |
In the event that an Investor chooses to submit the dispute for resolution under subparagraph (2)(c), the Investor shall further provide its consent in writing for the dispute to be submitted to:
|
||||||||||
5. |
|
||||||||||
6. |
A tribunal established under paragraph (4) shall decide the issues in dispute in accordance with this Treaty and applicable rules and principles of international law. |
||||||||||
7. |
An Investor other than a natural person which has the nationality of a Contracting Party party to the dispute on the date of the consent in writing referred to in paragraph (4) and which, before a dispute between it and that Contracting Party arises, is controlled by Investors of another Contracting Party, shall for the purpose of article 25(2)(b) of the ICSID Convention be treated as a "national of another Contracting State" and shall for the purpose of article 1(6) of the Additional Facility Rules be treated as a "national of another State". |
||||||||||
8. |
The awards of arbitration, which may include an award of interest, shall be final and binding upon the parties to the dispute. An award of arbitration concerning a measure of a sub-national government or authority of the disputing Contracting Party shall provide that the Contracting Party may pay monetary damages in lieu of any other remedy granted. Each Contracting Party shall carry out without delay any such award and shall make provision for the effective enforcement in its Area of such awards. |
[39] |
See Final Act of the European Energy Charter Conference, Understandings, 17. |
[40] |
See Final Act of the European Energy Charter Conference, Understandings, 16. |
Article 27
Settlement of disputes between Contracting Parties[41]
1. |
Contracting Parties shall endeavour to settle disputes concerning the application or interpretation of this Treaty through diplomatic channels. |
||||||||||||||||||||||||
2. |
If a dispute has not been settled in accordance with paragraph (1) within a reasonable period of time, either party thereto may, except as otherwise provided in this Treaty or agreed in writing by the Contracting Parties, and except as concerns the application or interpretation of Article 6 or Article 19 or, for Contracting Parties listed in Annex IA, the last sentence of Article 10(1), upon written notice to the other party to the dispute submit the matter to an ad hoc tribunal under this Article. |
||||||||||||||||||||||||
3. |
Such an ad hoc arbitral tribunal shall be constituted as follows:
|
[41] |
See Final Act of the European Energy Charter Conference, Understandings, 17. |
Article 28
Non-application of Article 27 to certain disputes
A dispute between Contracting Parties with respect to the application or interpretation of Article 5 or 29 shall not be settled under Article 27 unless the Contracting Parties parties to the dispute so agree.
Part VI - Transitional provisions
Article 29
Interim provisions on trade-related matters[43]
1. |
The provisions of this Article shall apply to trade in Energy Materials and Products and Energy-Related Equipment while any Contracting Party is not a member of the WTO. |
||||||||||
2. |
|
||||||||||
3. |
|
||||||||||
4. |
Each Contracting Party shall endeavour not to increase any customs duty or charge of any kind imposed on or in connection with importation or exportation:
|
||||||||||
5. |
A Contracting Party may increase such customs duty or other charge above the level referred to in paragraph (4) only if:
|
||||||||||
6. |
In respect of trade between Contracting Parties at least one of which is not a member of the WTO, no such Contracting Party shall increase any customs duty or charge of any kind imposed on or in connection with importation or exportation of Energy Materials and Products listed in Annex EM II or Energy-Related Equipment listed in Annex EQ II above the lowest of the levels applied on the date of the decision by the Charter Conference to list the particular item in the relevant Annex.[45] |
||||||||||
7. |
Notwithstanding paragraph (6), in the case of trade referred to in that paragraph, Contracting Parties listed in Annex BR in respect of Energy Materials and Products listed in Annex EM II, or in Annex BRQ in respect of Energy-Related Equipment listed in Annex EQ II, shall not increase any customs duty or other charge above the level resulting from their commitments or any provisions applicable to them under the WTO Agreement. |
||||||||||
8. |
Other duties and charges imposed on or in connection with importation or exportation of Energy Materials and Products or Energy-Related Equipment shall be subject to the provisions of the Understanding on the Interpretation of Article II: 1(b) of the GATT 1994 as modified according to Annex W. |
||||||||||
9. |
Annex D shall apply:
Except that Annex D shall not apply to any dispute between Contracting Parties, the substance of which arises under an agreement that:
|
[43] |
See Final Act of the European Energy Charter Conference, Understandings, 14. |
[44] |
See Final Act of the International Conference and Decision by the Energy Charter Conference in respect of the Amendment to the Trade-Related Provisions of the Energy Charter Treaty, Understandings, n. 1. with respect to Article 29(2)(a) and Annex W. |
[45] |
See Final Act of the International Conference and Decision by the Energy Charter Conference in respect of the Amendment to the Trade-Related Provisions of the Energy Charter Treaty, Understandings, n. 3. with respect to Article 29(6) and (7) and 34(3)(o). |
Article 30
Developments in international trading arrangements
Contracting Parties undertake that in the light of the results of the Uruguay Round of Multilateral Trade Negotiations embodied principally in the Final Act thereof done at Marrakesh, 15 April 1994, they will commence consideration not later than 1 July 1995 or the entry into force of this Treaty, whichever is the later, of appropriate amendments to this Treaty with a view to the adoption of any such amendments by the Charter Conference.
Article 31
Energy-related equipment
The provisional Charter Conference shall at its first meeting commence examination of the inclusion of energy-related equipment in the trade provisions of this Treaty.
Article 32
Transitional arrangements
1. |
In recognition of the need for time to adapt to the requirements of a market economy, a Contracting Party listed in Annex T may temporarily suspend full compliance with its obligations under one or more of the following provisions of this Treaty, subject to the conditions in paragraphs (3) to (6):
|
||||||||||||||
2. |
Other Contracting Parties shall assist any Contracting Party which has suspended full compliance under paragraph (1) to achieve the conditions under which such suspension can be terminated. This assistance may be given in whatever form the other Contracting Parties consider most effective to respond to the needs notified under subparagraph (4)(c) including, where appropriate, through bilateral or multilateral arrangements. |
||||||||||||||
3. |
The applicable provisions, the stages towards full implementation of each, the measures to be taken and the date or, exceptionally, contingent event, by which each stage shall be completed and measure taken are listed in Annex T for each Contracting Party claiming transitional arrangements. Each such Contracting Party shall take the measure listed by the date indicated for the relevant provision and stage as set out in Annex T. Contracting Parties which have temporarily suspended full compliance under paragraph (1) undertake to comply fully with the relevant obligations by 1 July 2001. Should a Contracting Party find it necessary, due to exceptional circumstances, to request that the period of such temporary suspension be extended or that any further temporary suspension not previously listed in Annex T be introduced, the decision on a request to amend Annex T shall be made by the Charter Conference. |
||||||||||||||
4. |
A Contracting Party which has invoked transitional arrangements shall notify the Secretariat no less often than once every 12 months:
|
||||||||||||||
5. |
The Secretariat shall:
|
||||||||||||||
6. |
The Charter Conference shall annually review the progress by Contracting Parties towards implementation of the provisions of this Article and the matching of needs and offers of technical assistance referred to in paragraph (2) and subparagraph (4)(c). In the course of that review it may decide to take appropriate action. |
[46] |
“Competition”. |
[47] |
“Transit”. |
[48] |
“Access to capital”. |
[49] |
“Promotion, protection, and treatment of investments”. |
[50] |
“Transfers related to investments”. |
[51] |
“Transparency”. |
[52] |
“State and privileged enterprises”. |
Part VII - Structure and institutions
Article 33
Energy Charter Protocols and Declarations[53]
1. |
The Charter Conference may authorize the negotiation of a number of Energy Charter Protocols or Declarations in order to pursue the objectives and principles of the Charter. |
||||||||
2. |
Any signatory to the Charter may participate in such negotiation. |
||||||||
3. |
A state or Regional Economic Integration Organization shall not become a party to a Protocol or Declaration unless it is, or becomes at the same time, a signatory to the Charter and a Contracting Party to this Treaty. |
||||||||
4. |
Subject to paragraph (3) and subparagraph (6)(a), final provisions applying to a Protocol shall be defined in that Protocol. |
||||||||
5. |
A Protocol shall apply only to the Contracting Parties which consent to be bound by it, and shall not derogate from the rights and obligations of those Contracting Parties not party to the Protocol. |
||||||||
6. |
|
[53] |
See Final Act of the European Energy Charter Conference, Understandings, 19. |
Article 34
Energy Charter Conference[54]
1. |
The Contracting Parties shall meet periodically in the Energy Charter Conference (referred to herein as the "Charter Conference") at which each Contracting Party shall be entitled to have one representative. Ordinary meetings shall be held at intervals determined by the Charter Conference. |
||||||||||||||||||||||||||||||||
2. |
Extraordinary meetings of the Charter Conference may be held at such times as may be determined by the Charter Conference, or at the written request of any Contracting Party, provided that, within six weeks of the request being communicated to the Contracting Parties by the Secretariat, it is supported by at least one-third of the Contracting Parties. |
||||||||||||||||||||||||||||||||
3. |
The functions of the Charter Conference shall be to:
|
||||||||||||||||||||||||||||||||
4. |
In the performance of its duties, the Charter Conference, through the Secretariat, shall co-operate with and make as full a use as possible, consistently with economy and efficiency, of the services and programmes of other institutions and organizations with established competence in matters related to the objectives of this Treaty. |
||||||||||||||||||||||||||||||||
5. |
The Charter Conference may establish such subsidiary bodies as it considers appropriate for the performance of its duties. |
||||||||||||||||||||||||||||||||
6. |
The Charter Conference shall consider and adopt rules of procedure and financial rules. |
||||||||||||||||||||||||||||||||
7. |
In 1999 and thereafter at intervals (of not more than five years) to be determined by the Charter Conference, the Charter Conference shall thoroughly review the functions provided for in this Treaty in the light of the extent to which the provisions of the Treaty and Protocols have been implemented. At the conclusion of each review the Charter Conference may amend or abolish the functions specified in paragraph (3) and may discharge the Secretariat. |
[54] |
See Final Act of the European Energy Charter Conference, Understandings, 20. |
[55] |
See Final Act of the European Energy Charter Conference, Understandings, 21. |
Article 35
Secretariat
1. |
In carrying out its duties, the Charter Conference shall have a Secretariat which shall be composed of a Secretary-General and such staff as are the minimum consistent with efficient performance. |
2. |
The Secretary-General shall be appointed by the Charter Conference. The first such appointment shall be for a maximum period of five years. |
3. |
In the performance of its duties the Secretariat shall be responsible to and report to the Charter Conference. |
4. |
The Secretariat shall provide the Charter Conference with all necessary assistance for the performance of its duties and shall carry out the functions assigned to it in this Treaty or in any Protocol and any other functions assigned to it by the Charter Conference. |
5. |
The Secretariat may enter into such administrative and contractual arrangements as may be required for the effective discharge of its functions. |
Article 36
Voting
1. |
Unanimity of the Contracting Parties Present and Voting at the meeting of the Charter Conference where such matters fall to be decided shall be required for decisions by the Charter Conference to:
The Contracting Parties shall make every effort to reach agreement by consensus on any other matter requiring their decision under this Treaty. If agreement cannot be reached by consensus, paragraphs (2) to (5) shall apply. |
||||||||||||||
2. |
Decisions on budgetary matters referred to in Article 34(3)(e) shall be taken by a qualified majority of Contracting Parties whose assessed contributions as specified in Annex B represent, in combination, at least three-fourths of the total assessed contributions specified therein. |
||||||||||||||
3. |
Decisions on matters referred to in Article 34(7) shall be taken by a three-fourths majority of the Contracting Parties. |
||||||||||||||
4. |
Except in cases specified in subparagraphs (1)(a) to (g), paragraphs (2) and (3), and subject to paragraph (6), decisions provided for in this Treaty shall be taken by a three-fourths majority of the Contracting Parties Present and Voting at the meeting of the Charter Conference at which such matters fall to be decided. |
||||||||||||||
5. |
For purposes of this Article, “Contracting Parties Present and Voting" means Contracting Parties present and casting affirmative or negative votes, provided that the Charter Conference may decide upon rules of procedure to enable such decisions to be taken by Contracting Parties by correspondence. |
||||||||||||||
6. |
Except as provided in paragraph (2), no decision referred to in this Article shall be valid unless it has the support of a simple majority of the Contracting Parties. |
||||||||||||||
7. |
A Regional Economic Integration Organization shall, when voting, have a number of votes equal to the number of its member states which are Contracting Parties to this Treaty; provided that such an Organization shall not exercise its right to vote if its member states exercise theirs, and vice versa. |
||||||||||||||
8. |
In the event of persistent arrears in a Contracting Party's discharge of financial obligations under this Treaty, the Charter Conference may suspend that Contracting Party's voting rights in whole or in part. |
Article 37
Funding principles
1. |
Each Contracting Party shall bear its own costs of representation at meetings of the Charter Conference and any subsidiary bodies. |
2. |
The cost of meetings of the Charter Conference and any subsidiary bodies shall be regarded as a cost of the Secretariat. |
3. |
The costs of the Secretariat shall be met by the Contracting Parties assessed according to their capacity to pay, determined as specified in Annex B, the provisions of which may be modified in accordance with Article 36(1)(d). |
4. |
A Protocol shall contain provisions to assure that any costs of the Secretariat arising from that Protocol are borne by the parties thereto. |
5. |
The Charter Conference may in addition accept voluntary contributions from one or more Contracting Parties or from other sources. Costs met from such contributions shall not be considered costs of the Secretariat for the purposes of paragraph (3). |
Part VIII - Final provisions
Article 38
Signature
This Treaty shall be open for signature at Lisbon from 17 December 1994 to 16 June 1995 by the states and Regional Economic Integration Organizations which have signed the Charter.
Article 39
Ratification, acceptance or approval
This Treaty shall be subject to ratification, acceptance or approval by signatories. Instruments of ratification, acceptance or approval shall be deposited with the Depository.
Article 40
Application to territories[56]
1. |
Any state or Regional Economic Integration Organization may at the time of signature, ratification, acceptance, approval or accession, by a declaration deposited with the Depository, declare that the Treaty shall be binding upon it with respect to all the territories for the international relations of which it is responsible, or to one or more of them. Such declaration shall take effect at the time the Treaty enters into force for that Contracting Party. |
2. |
Any Contracting Party may at a later date, by a declaration deposited with the Depository, bind itself under this Treaty with respect to other territory specified in the declaration. In respect of such territory the Treaty shall enter into force on the ninetieth day following the receipt by the Depository of such declaration. |
3. |
Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification to the Depository. The withdrawal shall, subject to the applicability of Article 47(3), become effective upon the expiry of one year after the date of receipt of such notification by the Depository. |
4. |
The definition of "Area" in Article 1(10) shall be construed having regard to any declaration deposited under this Article. |
[56] |
See Final Act of the European Energy Charter Conference, Declarations, 6. |
Article 41
Accession
This Treaty shall be open for accession, from the date on which the Treaty is closed for signature, by states and Regional Economic Integration Organizations which have signed the Charter, on terms to be approved by the Charter Conference. The instruments of accession shall be deposited with the Depository.
Article 42
Amendments
1. |
Any Contracting Party may propose amendments to this Treaty. |
2. |
The text of any proposed amendment to this Treaty shall be communicated to the Contracting Parties by the Secretariat at least three months before the date on which it is proposed for adoption by the Charter Conference. |
3. |
Amendments to this Treaty, texts of which have been adopted by the Charter Conference, shall be communicated by the Secretariat to the Depository which shall submit them to all Contracting Parties for ratification, acceptance or approval. |
4. |
Instruments of ratification, acceptance or approval of amendments to this Treaty shall be deposited with the Depository. Amendments shall enter into force between Contracting Parties having ratified, accepted or approved them on the ninetieth day after deposit with the Depository of instruments of ratification, acceptance or approval by at least three-fourths of the Contracting Parties. Thereafter the amendments shall enter into force for any other Contracting Party on the ninetieth day after that Contracting Party deposits its instrument of ratification, acceptance or approval of the amendments. |
Article 43
Association agreements
1. |
The Charter Conference may authorize the negotiation of association agreements with states or Regional Economic Integration Organizations, or with international organizations, in order to pursue the objectives and principles of the Charter and the provisions of this Treaty or one or more Protocols. |
2. |
The relationship established with and the rights enjoyed and obligations incurred by an associating state, Regional Economic Integration Organization, or international organization shall be appropriate to the particular circumstances of the association, and in each case shall be set out in the association agreement. |
Article 44
Entry into force
1. |
This Treaty shall enter into force on the ninetieth day after the date of deposit of the thirtieth instrument of ratification, acceptance or approval thereof, or of accession thereto, by a state or Regional Economic Integration Organization which is a signatory to the Charter as of 16 June 1995. |
2. |
For each state or Regional Economic Integration Organization which ratifies, accepts or approves this Treaty or accedes thereto after the deposit of the thirtieth instrument of ratification, acceptance or approval, it shall enter into force on the ninetieth day after the date of deposit by such state or Regional Economic Integration Organization of its instrument of ratification, acceptance, approval or accession. |
3. |
For the purposes of paragraph (1), any instrument deposited by a Regional Economic Integration Organization shall not be counted as additional to those deposited by member states of such Organization. |
Article 45
Provisional application
1. |
Each signatory agrees to apply this Treaty provisionally pending its entry into force for such signatory in accordance with Article 44, to the extent that such provisional application is not inconsistent with its constitution, laws or regulations. |
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2. |
|
||||||
3. |
|
||||||
4. |
Pending the entry into force of this Treaty the signatories shall meet periodically in the provisional Charter Conference, the first meeting of which shall be convened by the provisional Secretariat referred to in paragraph (5) not later than 180 days after the opening date for signature of the Treaty as specified in Article 38. |
||||||
5. |
The functions of the Secretariat shall be carried out on an interim basis by a provisional Secretariat until the entry into force of this Treaty pursuant to Article 44 and the establishment of a Secretariat. |
||||||
6. |
The signatories shall, in accordance with and subject to the provisions of paragraph (1) or subparagraph (2)(c) as appropriate, contribute to the costs of the provisional Secretariat as if the signatories were Contracting Parties under Article 37(3). Any modifications made to Annex B by the signatories shall terminate upon the entry into force of this Treaty. |
||||||
7. |
A state or Regional Economic Integration Organization which, prior to this Treaty's entry into force, accedes to the Treaty in accordance with Article 41 shall, pending the Treaty's entry into force, have the rights and assume the obligations of a signatory under this Article. |
Article 46
Reservations
No reservations may be made to this Treaty.
Article 47
Withdrawal
1. |
At any time after five years from the date on which this Treaty has entered into force for a Contracting Party, that Contracting Party may give written notification to the Depository of its withdrawal from the Treaty. |
2. |
Any such withdrawal shall take effect upon the expiry of one year after the date of the receipt of the notification by the Depository, or on such later date as may be specified in the notification of withdrawal. |
3. |
The provisions of this Treaty shall continue to apply to Investments made in the Area of a Contracting Party by Investors of other Contracting Parties or in the Area of other Contracting Parties by Investors of that Contracting Party as of the date when that Contracting Party's withdrawal from the Treaty takes effect for a period of 20 years from such date. |
4. |
All Protocols to which a Contracting Party is party shall cease to be in force for that Contracting Party on the effective date of its withdrawal from this Treaty. |
Article 48
Status of annexes and decisions
The Annexes to this Treaty and the Decisions set out in Annex 2 to the Final Act of the European Energy Charter Conference signed at Lisbon on 17 December 1994 are integral parts of the Treaty.
Article 49
Depositary
The Government of the Portuguese Republic shall be the Depository of this Treaty.
Article 50
Authentic texts
In witness whereof the undersigned, being duly authorized to that effect, have signed this Treaty in English, French, German, Italian, Russian and Spanish, of which every text is equally authentic, in one original, which will be deposited with the Government of the Portuguese Republic.
Done at Lisbon on the seventeenth day of December in the year one thousand nine hundred and ninety-four.
In the ‘Table of Contents’ of Annexes to the Energy Charter Treaty, rename “Annex EM” as “Annex EM I”, insert as 2 to 4 the additional Annexes “Annex EM II ”, “Annex EQ I List of Energy-Related Equipment (In accordance with Article 1(4bis))” and “”.
1. Annex EM I
Energy Material and Products (In accordance with Article 1(4))
[Omitted]
2. Annex EM II
Energy Materials and Products (In accordance with Article 1(4))
[Omitted]
3. Annex EQ I
List of Energy-Related Equipment (In accordance with Article 1(4bis))
[Omitted]
4. Annex EQ II
List of Energy-Related Equipment (In accordance with Article 1(4bis))
[Omitted]
5. Annex NI
Non-applicable Energy Materials and Products for definitions of "economic activity in the energy sector" (In accordance with Article 1(5))
[Omitted]
6. Annex TRM
Notification and phase-out (TRIMs) (In accordance with Article 5(4))
[Omitted]
7. Annex N
List of Contracting Parties requiring at least 3 separate areas to be involved in a transit (In accordance with Article 7(10)(A))
[Omitted]
8. Annex VC
List of Contracting Parties which have made voluntary binding commitments in respect of Article 10(3) (In accordance with Article 10(6))
[Omitted]
9. Annex ID
List of Contracting Parties not allowing an investor to resubmit the same dispute to international arbitration at a later stage under Article 26 (In accordance with Article 26(3)(B)(I))
[Omitted]
10. Annex IA
List of Contracting Parties not allowing an investor or contracting party to submit a dispute concerning the last sentence of Article 10(1) to international arbitration (In accordance with Articles 26(3)(C) and 27(2))
[Omitted]
11. Annex P
Special sub-national dispute procedure (In accordance with Article 27(3)(I))
[Omitted]
12. Annex W
Exception and rules governing the application of the provisions of the WTO Agreement (In accordance with Article 29(2)(a))
[Omitted]
13. Annex TFU
Provisions regarding trade agreements between States which were constituent parts of the Former Union of Soviet Socialist Republics (In accordance with Article 29(2)(b))
[Omitted]
14. Annex BR
List of Contracting Parties which shall not increase any customs duty or other charge above the level resulting from their commitments or any provisions applicable to them under the WTO Agreement (In accordance with Article 29(7))
[Omitted]
15. Annex BRQ
List of Contracting Parties which shall not increase any customs duty or other charge above the level resulting from their commitments or any provisions applicable to them under the WTO Agreement (In accordance with Article 29(7))
[Omitted]
16. Annex D
Interim provisions for trade dispute settlement (In accordance with Article 29(9))
[Omitted]
17. Annex B
Formula for Allocating Charter Costs (In accordance with Article 37(3))
[Omitted]
18. Annex PA
List of Signatories which do Not Accept the Provisional Application Obligation of Article 45(3)(B) (In accordance with Article 45(3)(C))
[Omitted]
19. Annex T
Contracting Parties' Transitional Measures (In accordance with Article 32(1))
[Omitted]
Annex 2 to the Final Act of the European Energy Charter Conference
Decisions with respect to the Energy Charter Treaty
[Omitted]
Annex 3 to the Final Acto of the European Energy Charter Conference
Energy Charter Protocol on Energy Efficiency and Related Environmental Aspects
[Omitted]
Ratifications as of May 2016
Number of ratifications: 49
Afghanistan, Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, European Union and Euratom, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Japan, Kazakhstan, Kyrgyzstan, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Mongolia, Montenegro, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, Tajikistan, Turkey, Turkmenistan, Ukraine, United Kingdom, Uzbekistan
[38] |
See Decision with respect to the Energy Charter Treaty (Annex 2 to the Final Act of the European Energy Charter Conference), 1; and Final Act of the European Energy Charter Conference, Understandings, 9. |
[*] |
As amended 1998-04-24, in force 2010-01-21. |