Dr. Martin Jarrett

Presentation:

Energy Charter Treaty - Clean Energy Debate: Appreciating the Legal Complexities (8 July 2020)

• Link to presentation

• Description:

Should the Energy Charter Treaty (‘ECT’) be modernised or terminated?

As the contracting parties head into another round of negotiations for the modernisation process, numerous calls have been made in the media for termination. A key premise in the argument leading to that conclusion posits that the ECT will obstruct this energy transition. The reason for this obstruction is that as contracting parties implement the policies needed for the energy transition, they will have to pay out compensation under the ECT to investors in carbon-energy production.

In this video, I critically examine the idea that governments will necessarily accrue legal responsibility under the ECT for transiting to clean-energy economies.

Presentation:

The Modernisation of the Energy Charter Treaty (22 June 2020)

• Link to presentation

• Description: 

No other investment treaty compares to the Energy Charter Treaty (the ‘ECT’).  It has 53 contracting parties, more than any other investment treaty. Further, it has given rise to more than 130 investor-state arbitrations, again, more than any other investment treaty.  Accordingly, when the contracting parties announced in the Bucharest Declaration that the ECT had to be modernised in light of new realities, it was a significant moment in the history of international investment law.

This presentation examines this modernisation process, specifically focusing on the legal questions that will come up in this process.

It begins with the legal mechanics for amending the ECT. The focus then shifts to the 'EU Text Proposal for the Modernisation of the Energy Charter Treaty’ (the ‘Draft Proposal’). First, it looks at the legal validity of the European Commission's attempts to harden the obligations of the Paris Agreement. Second, it compares the concept of legitimate expectations, as outlined in the Draft Proposal, to the jurisprudence on legitimate expectations that has emerged from the many recent ECT investor-Spain arbitrations. Third, the idea that withdrawing a subsidy to an investor by order of a 'competent authority’ could be a defence to a breach of a state's obligations vis-a-vis the treatment of investments is critiqued. It is argued that this idea is incompatible with a basic principle from the law on international responsibility, namely that domestic law should have no legally determinative role in answering the question of a state's international responsibility.

Standing Up to Investor Misconduct (10 October 2019).

• Source: Radio Regenbogen (link to interview)

• Description: radio interview for the programme 'Campus-Report' on sanctioning investor misconduct under international law and the desirability of an international court for investor-state disputes.

'It was hard to look at their faces': MH17 victim's mother welcomes charges (20 June 2019).

• Source: Sydney Morning Herald (link to story)

• Description: advised journalist on the options for seeking to hold Russia to account for the downing of MH17 under international law.