The Energy Charter: Good Practices for Facilitating a Predictable Investment Climate in the Energy Industry

May 19, 2015 | 00:00
The Energy Charter: Good Practices for Facilitating a Predictable Investment Climate in the Energy Industry
The Energy Charter: Good Practices for Facilitating a Predictable Investment Climate in the Energy Industry
Energy security, sustainability and affordability in the future are defined by the investments that are made in the sector today. Currently, there are substantial uncertainties yet investors still have to make decisions to commit their capital. These uncertainties range from market shifts to geopolitical issues, environmental policies on national and global levels, as well as public acceptance (not only when it comes to conventional fossil fuels development like natural gas in Groningen, but also RES and fossil fuels subsidies).

The IEA[1] highlights two ‘revolutions’ over the last decade which happened due to right investment frameworks and policies being in place: shale gas in the US, and renewables in Europe (half of total electricity investments came from RES). At the same time, investments in RES in Europe were three times higher compared to shale investments in the US.

It is known that over the last ten years capital costs required to produce a unit of energy have doubled, while between now and 2035 some 40 trillion USD of investments is required globally.[2] To put things in perspective, 40% of the total investment needed has to be in place to meet the needs of the growing market, while 60% is to maintain existing levels of energy production.

When it comes to oil investments, the era of ‘easy oil’ is over, and some 80% of capital will be needed to deal with the production decline of existing fields and cannot be used for meeting demand growth. One also has to note that national oil and gas companies own ¾ of the world energy reserves.

On the power side, roughly 10 trillion USD of investment is needed in power generation. At the same time, while 15 years ago 33% of power markets were driven by market competition, today it is only 10% and the majority of fossil fuel electricity generation in OECD countries takes place in regulated markets. Therefore, out of 10 trillion dollars of investments needed for power generation, only 1 trillion is taking place in competitive markets,[3] while approximately 20 billion USD of investments in energy efficiency is lacking annually to meet policy targets internationally.

Those examples demonstrate that the “decisions to commit capital to the energy sector are increasingly shaped by government policy measures and incentives, rather than by signals coming from competitive markets.”[4] At the same time, the role of the private sector is recognized as being absolutely crucial, and therefore regulatory and political uncertainties have to be urgently addressed.

Although energy market dynamics and the speed of technological developments are something a modern state or business can hardly control, managing non-commercial risks becomes key to enhancing the predictability of the investment climate in the industry, as well as to securing the necessary investments in the sector to meet future demand and economic growth.

To this end, the Energy Charter Treaty (ECT) is the first, and remains the only, multilateral investment treaty in the energy field that covers a range of sub-sectors needing high investment, and offers a number of instruments to minimise non-commercial risks for cross-border investment flows. With its broad geographical scope (up to one half of UN members), the ECT brings together states along the energy value chain (producers, consumers and transit states) and requires rules on the exploration, development and acquisition of resources to be publicly available, non-discriminatory and transparent.

At the same time, the Treaty is explicit in confirming national sovereignty over energy resources and the extent to which an energy sector will be opened to foreign investments. Therefore, the ECT’s approach to investors' access to energy resources in its member states is well balanced.

The investment provisions of the Treaty can indeed be considered its cornerstone, as it aims to ensure the creation of a level playing field for energy investments across its member states.

Back in the early 1990s, the European Energy Charter (EEC) and the ECT were established with a focus on East-West energy cooperation, improvement of the investment climate and protection of capital flows to the countries with economies in transition (see Part II of the Energy Charter series). However, the relevance of the Charter Treaty has been proven across its entire constituency, which has diverse economic profiles and legal systems. For instance, one has to consider the fact that the Treaty has been invoked increasingly often in Europe due to the expansion of renewable energy sources.[5]

The ECT’s investment provisions were initially based on a number of legal practices, i.e. the “well-established practice of BITs (at the beginning of negotiations on the ECT already about 400 BITs were in place); investment chapter XI of NAFTA (US, Canada, Mexico); some interaction with the then proposed ‘Multilateral Agreement for Investment’ (MAI, though aborted in 1998).”[6]

Within its constituency (52 member states plus the EU and EURATOM), the ECT is currently equivalent to more than 1200 BITs, which in turn, equals to roughly half of all the BITs concluded worldwide. That said, more than half of the total ECT-equivalent amount was signed after the endorsement of the Treaty, which means that “the ECT does not only ‘substitute’ a substantial amount of BITs that would have to be concluded, but saves a lot of time that would have been needed for the negotiations process as well as the establishment of a level playing field.”[7]

Apart from the legal framework offered by the ECT, the Energy Charter has a number of dedicated bodies that provide legal and policy advising to its members, as well as promote and facilitate regional cooperation, carry out training activities, and research and capacity building (the Energy Charter Knowledge Centre). These bodies operate under the supervision of the Charter Conference and include the Charter’s Investment Group, the Industry Advisory Panel (IAP) and the Legal Advisory Task Force.

The Industry Advisory Panel: a platform for dialogue, good practice sharing, and promotion of regional cooperation
The IAP has recently celebrated the 10th anniversary of its establishment by the Energy Charter Conference, and today, with members from 43 energy companies, international associations and institutions from 23 countries, it covers the full scope of energy supply, distribution and financing activities. Notably, last year the IAP accepted GO15 (a major power grid operator), Dii (industrial alliance), the US Chamber of Commerce (USCC), MoldovaGaz, Abengoa SA and China National Petroleum Corporation (CNPC) as new members, and also received a membership request from the Iranian Research Institute of Petroleum Industry.

Good practice sharing, from Europe to the EU-MENA Region and China
According to Zafar Samadov, Senior Expert at the Energy Charter Secretariat, the ”IAP provides concrete and robust recommendations to address the rapid changes in the energy sector.” The IAP has been active in addressing a number of topical issues for the industry, such as the one of establishing a stable and comprehensive regulatory framework across the EU-MENA region in order to boost investments in renewable energy. The IAP provided a forum for discussion for a group of experts, including representatives of Dii GmbH, to exchange the good practices in ways of supporting the regional approach to improve key aspects of the investment environment in the region. During the expert meetings, the ECT was identified as an important tool to enhance legal certainty and strengthen security and protection of international investments.[8],[9] This statement is also reflected in the Dii EUMENA report Desert Power: Getting started. The manual for renewable electricity in MENA. The latter clearly states that without the ECT, the renewables potential of the MENA region cannot be unlocked:
“Multilateral investment frameworks promote legal stability. Additionally, investment agreements with a specific focus on energy activities are essential to tackle the particular characteristics of RE (renewable energy) projects. The Energy Charter Treaty is currently a well-equipped instrument to meet these two aspects”. Furthermore, the ECT “should be used to provide minimum principles to ensure that the regulations in the different countries are compatible.”[10]

Recently, the Ministry of Petroleum and Mineral Resources of Egypt invited the IAP to hold its next meeting in Cairo. It will address the needs of Foreign Direct Investors in developing the energy sector of Egypt and consider the challenges of planned international energy networks, including natural gas transportation between Egypt and the EU via the Arab gas pipeline.

The IAP also provides a forum for good practice sharing in renewable support schemes in Europe, such as wind power remuneration frameworks and successful negotiations over the latter in Portugal.

That said, the scope of IAP’s work goes beyond Europe and the MENA region. This year the Panel was invited to hold an expert meeting in China. This meeting hosted by CNPC will take place in July 2015 with the aim to take further the already established cooperation with the country and explore the opportunities for new joint initiatives between the ECT and China.

Apart from the cooperation with energy industries and governments, the Energy Charter is actively working with other international organisations on the issues of energy investments and sustainability. In this way, the Energy Charter is in the OECD’s Working Group on Green Investments, as well as in the Energy Sustainability Working Group reporting to the G20 Leaders Summit.

Energy Investments: Central and Southern Asia
When it comes to power investments and trade, the work of the Task Force on Regional Energy Cooperation in Central and Southern Asia launched by the ECT in 2007 is particularly prominent. The initial participating countries, i.e. Afghanistan, Kazakhstan, Kyrgyzstan, Pakistan, Tajikistan and Uzbekistan, signed the founding Bishkek Declaration on 26 April 2007, which had an explicit focus on the cooperation and development of the legal framework for facilitating a sustainable and secure regional power trade, based on the Energy Charter Treaty. It is important to note that as of 2011 China, Korea, Mongolia, and Turkmenistan joined the Task Force, while the scope of energy sub-sectors covered by the group widened.

This year, under the Conference Chairmanship of Georgia, new initiatives have been launched supporting the development of regional cooperation in the electricity sector. In particular, a Task Force has been established with Armenia and Azerbaijan, as Georgia is aspiring to enhance investments in its transmission capacities. The upcoming conference in Tbilisi on June 30 – July 1 will take stock of these initiatives and reveal the outcomes of the negotiations over new projects in the region.

The Energy Charter Model Agreements and Nabucco, Baku-Tbilisi-Ceyhan and South Caucasus Pipeline Projects
Moving to the legal advising and support provided by the ECT, the work of the Legal Advisory Task Force (LATF) is central, as it is focused on drafting of balanced and legally coherent Model Agreements for cross-border oil and gas pipelines.

Experts point to the fact that the IGAs (Intergovernmental Agreements) and HGAs (Host Government Agreements) and of such projects as Nabucco, BTC and the South Caucasus Pipeline clearly share the core common principles and features of the Model Agreements as well as the Protocol. Likewise, agreements for the TAPI and Kirkuk-Ceyhan Crude Oil Pipelines, “despite their apparent differences in structure and nature […] nevertheless relate to the Model IGA and the Protocol in a number of ways as well.”[11]

The Model Agreement package provided by the ECT is considered by a number of experts as an important stepping-stone for negotiations over the development of international energy projects. Although the Model Agreements have been designed primarily for oil and gas infrastructure projects, there is an on-going discussion on widening their scope and reaching out to LNG projects as well in order to provide some explanations of good practices, policy blueprints and international standards.[12]

The current overview[13] of some of the ECT’s good practices for facilitating a predictable investment climate in the energy sector illustrates the capacity of the ECT to deliver practical solutions to ensure investment predictability. This in turn underpins all dimensions of energy security, including energy supply, demand, transit/transportation, as well as sustainability and affordability. Apart from that, through its subsidiary bodies, the ECT provides an interface for an exchange of good practices and a platform for discussions between industry and governments, at times when cooperation between the two and compromises are key to secure investments in the sector.

Ensuring a better investment climate and investment protection is therefore the raison d'être of the Energy Charter. This issue will be largely addressed during the upcoming Ministerial Conference in the Hague (20-21 May), where the International Energy Charter will be endorsed. Among the more than 70 participating nations are China, Iran, Colombia, the US, Nigeria and Chile, thus expanding the geographical scope of the Energy Charter.

The topics addressed in by this Ministerial Conference include investments in energy production, development of pipeline infrastructure, shipping and electricity networks, as well as renewable energy and energy affordability.

1. IEA World Energy Investment Outlook 2014
2. Ibid.
3. Ibid.
4. Ibid.
5. Up to now, 62 cases are reported to have been filed under the ECT, out of which 31 have been filed from 2012 onwards and 22 involve renewable energy claims (out of those 22, 14 were filed against Spain).
6. A. Konoplyanik, ‘Energy Security: The Role of Business, Governments, International Organisations and International Legal Framework’, Oil, Gas & Energy Law (OGEL), Vol. 6, No. 3. (2008) pp. 1-17, p. 13 For a more detailed description of the issue see A. Konoplyanik, T.Waelde ‘Energy Charter Treaty and its Role in International Energy’, Journal of Energy and Natural Resources Law Vol. 24, No 4, (2006) p. 523-558
7. Ibid.
8. IAP Insights 2013
9. The workshop on “The importance of long-term transmission rights for renewables and EUMENA power system integration” was organized by the Industry Advisory Panel together with the Dii and GO15 (an initiative of the world’s 16 largest Power Grid Operators), and Spanish construction giant ACS on June 23rd 2013 in Manzanares, Spain.
10. Dii EUMENA report ‘Desert Power: Getting started. The manual for renewable electricity in MENA’, p. 122
11. For a detailed analysis of the common principles and regional specificities of the selected Intergovernmental Agreements on oil and gas transit pipelines vis-à-vis the Energy Charter Model Agreements on Cross-Border Pipelines and the provisions of the draft Transit Protocol, see "Energy Transit Activities: Collection of Intergovernmental Agreements of Oil and Gas Transit Pipelines and Commentary" prepared by Dr. Rafael Leal-Arcas as research fellow at the Energy Charter Secretariat’s Knowledge Centre encharter.org
12. On the basis of the discussion at the Energy Charter Expert Meeting on 22 April 2015.
13. When it comes to transit issues and investment protection under the ECT, one can hardly overlook the history of the Charter’s relations with Russia. We would like to note that a special article on this topic will be issued in June 2015, as well as one on the legal aspects of the Treaty and its application.

We would like to thank all the experts whom we have consulted in the course of writing this article for providing their valuable comments, in particular, Zafar Samadov, Matteo Barra and Kanat Botbaev from the Energy Charter Secretariat in Brussels.

Image: The multi-purpose vessel “Bagheera” assisting in the laying of the gas pipeline (from Ballylumford) across Larne Lough. Copyright Albert Bridge and licensed for reuse under this Creative Commons Licence
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