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The Energy Charter Treaty reform: Why and how to reach a consensus on fair and equitable treatment?

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  • Kuzhatov, Bagdat G.

Abstract

A sharp rise in the number of energy disputes under the fair and equitable treatment standard (FET) has caused concerns and confusion for the Contracting Parties to the Energy Charter Treaty (ECT). The indeterminate FET wording of Article 10 (1) of the ECT has opened the door for disputes and a lack of coherence in the application of the FET has led to a blurring of boundaries between the legitimate right to regulate and a breach of the FET. The current FET scope has failed to address the emerging political and economic challenges of the new era. In the light of the modernisation process of the ECT, this paper examines the present FET wording and makes a contribution to the ongoing modernisation process by outlining the framework, as well as the procedural and institutional proposals. The paper proposes a revision of the FET scope rather than exclusion. The aim of the proposals is to revise the wording to establish a fairer balance between the right to regulate and investment protection.

Suggested Citation

  • Kuzhatov, Bagdat G., 2022. "The Energy Charter Treaty reform: Why and how to reach a consensus on fair and equitable treatment?," Energy Policy, Elsevier, vol. 163(C).
    • Handle: RePEc:eee:enepol:v:163:y:2022:i:c:s0301421521006352
    DOI: 10.1016/j.enpol.2021.112769
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    1. van Harten, Gus, 2007. "Investment Treaty Arbitration and Public Law," OUP Catalogue, Oxford University Press, number 9780199217892.
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    Cited by:

    1. Felix Ekardt & Paula Roos & Marie Bärenwaldt & Lea Nesselhauf, 2023. "Energy Charter Treaty: Towards a New Interpretation in the Light of Paris Agreement and Human Rights," Sustainability, MDPI, vol. 15(6), pages 1-18, March.

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