Reforming the Energy Charter Treaty for sustainability?

Abstract

This paper analyses and evaluates the ongoing modernisation process of the Energy Charter Treaty (ECT). The ECT, an international investment agreement in force since 1998, has been subject to international criticism and is therefore currently undergoing a process of modernisation. The EU and its member states have a vital role to play in the process and are currently striving to align the ECT with more recent investment agreements. This submission aims to shed light on the feasibility, prospects and pitfalls of the modernisation process. For that purpose, it reviews and contextualises the amendments proposed by the EU with regards to the question of whether they are suitable for achieving their intended objectives and whether they are legally and politically feasible. It concludes that while each proposed amendment would be suitable in itself to achieve the objective pursued, the current process finds its limit in the political feasibility: any amendment requires a unanimous decision. As a result, the objectives may not be achieved. Therefore, this article suggests an alternative means to the current process through encouraging the maintenance of the positive impacts of the ECT while undergoing modernisation.