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.
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