This is an HTML version of an attachment to the Freedom of Information request 'Correspondence & lobby meetings relating to Energy Charter Treaty'.



Ref. Ares(2017)1447535 - 17/03/2017
Ref. Ares(2017)1903424 - 10/04/2017
 
From:
Art. 4.1(b)
 (TRADE)
 
Sent:
30 January 2017 12:46
 
To:
TRADE LIST B2; 
Art. 4.1(b)
 (TRADE); 
Art. 4.1(b)
 (TRADE)
 
Cc:
Art. 4.1(b)
(SJ); 
Art. 4.1(b)
 (TRADE); 
Art. 4.1(b)
 (SJ); 
Art. 4.1(b)
 (SJ)
 
Subject:
27/01 expert meeting - Investment Protection Standards under ECT

summary report
 
Attachments:
Presentation responsibility of business to respect human 
rights.pdf
Last Friday I participated at the ECT investment expert meeting on ‘Investment 
Protection Standards under ECT’ attended by the 
delegates (JPN, EU, EU MS), UNCTAD, UNCITRAL, academia, law firms and energy 
companies. The first session consisted of 
presentations made by UNCTAD on the recent trends and developments of IP 
standards in IIAs, UNCITRAL on transparency and EU on 
its new approach to substantive rules. 
Art. 4.1(b)
 (Volterra Fietta) made a presentation on investors’ 
obligations (BHR) under international law, concluding there were 
none and debating pros and cons of creating such rules (suggesting this was not 
desirable  - in general and under ECT). Instead, she 
argued that the existing gap in investors ‘responsibilities’ under international
law should rather be bridged through reinforced national 
rules, their improved enforcement by the states and soft law instruments (RBC 
due diligence). I attach her presentation which features 
some interesting case law, including Urbaser ICSID award suggesting to the 
opposite.
The second part of the meeting turned into a ‘free style’ discussion of 
different ECT standards (mostly FET, umbrella clause and indirect 
expro) with some useful take-aways listed below. Considerable part of the 
meeting was initially dedicated to the discussion on the very 
purpose of this exercise, where EU argued that the objective should be not be to
look solely into consistency in application and 
interpretation of the existing disciplines under ECT (initial pitch suggested by
the ECT Secretariat) but also at the benchmarking of the 
existing ECT disciplines to their 'modernised' form.
 
*
academics and practitioners seem to agree that there is no inconsistency
in interpretation or application of the ECT investment 
protection standards by the tribunals; some perceived inconsistencies in 
application (rare though) are linked to the quality of 
the pleadings and the facts of the case; 
 
*
no conclusive result in discussion whether there would be a case for 
bringing more clarity and predictability to ECT text by 
codifying the existing trends in tribunal interpretation of ECT standards - with
the practitioners in general opposing such idea 
(‘the rules are made by the tribunal’), while some academics recognising value 
added in such approach;
 
*
areas where some interpretative guidance could be useful: methodology 
for assessment of indirect expropriation and 
calculation of compensation; lot of opposition to any ‘CETA style’ clarification
of FET; reaffirming right to regulate not 
needed legally but may be considered as a policy choice; 
 
*
difficulty to draw a line between ‘clarification’ and actual ‘revision 
of the content’ of the disciplines, with prevailing view 
around the table that a codification of the existing tribunal interpretation 
would probably qualify as clarification but any 
departure from it would probably be viewed as a revision of the discipline (with
a clear consequence for an appropriate 
instrument to be used) 
 
*
in terms of concrete proposals: 
- suggestion to publish a digest of ECT awards 
- explore possibility of interpretative statements by the Charter 
Conference 
- Protocol/Treaty amendment not realistic; rather empower Contracting 
Parties to issue binding interpretation of 
ECT (reference to NAFTA FTC) 

As a next step, ECT Secretariat will prepare a summary of the meeting on the 
basis of which it will elaborate a discussion paper to be 
submitted to the next IMPL Group in March.  
Art. 4.1(b)
 
European Commission 
DG TRADE 
Unit B2 Investment
Art. 4.1(b)