21994A1231(52)
Final Act of the Conference on the European Energy Charter - Annex
1: The Energy Charter Treaty - Annex 2: Decisions with respect to
the Energy Charter Treaty
Finnish special edition....: Chapter 12 Volume 3 p. 75
Swedish special edition...: Chapter 12 Volume 3 p. 75
L 069 09/03/1998 P. 0026
Dates:
OF DOCUMENT: 17/12/1994
OF EFFECT: 16/04/1998; ENTRY INTO FORCE SEE ART 44.1 AND OJ
L 69/98 P. 116
OF SIGNATURE: 17/12/1994; Lisbon
OF END OF VALIDITY: 99/99/9999
Authentic language: GERMAN ; ENGLISH ; SPANISH ; FRENCH ; ITALIAN ;
RUSSIAN
Author:
EUROPEAN COMMUNITY ; EUROPEAN ATOMIC ENERGY COMMUNITY ; THE 15
MEMBER STATES ; BELGIUM ; DENMARK ; FEDERAL REPUBLIC OF GERMANY ;
GREECE ; SPAIN ; FRANCE ; IRELAND ; ITALY ; LUXEMBOURG ; NETHERLANDS
; PORTUGAL ; UNITED KINGDOM ; FINLAND ; SWEDEN ; AUSTRIA ;
Conference on the European Energy Charter
Subject matter: EXTERNAL RELATIONS ; ENERGY ; ENVIRONMENT ;
COMMERCIAL POLICY ; PROVISIONS UNDER ARTICLE 235 EEC ; INTERNAL
MARKET ; FREEDOM OF ESTABLISHMENT AND SERVICES ; TAXATION
Directory code: 12101000
EUROVOC descriptor: accession ; energy policy ; environmental policy
; European charter ; EAEC ; ECSC
Legal basis:
192E054-P2................ ADOPTION
192E057-P2F3.............. ADOPTION
192E066................... ADOPTION
192E073C-P2............... ADOPTION
192E087................... ADOPTION
192E099................... ADOPTION
192E100A.................. ADOPTION
192E113................... ADOPTION
192E130S-P1............... ADOPTION
192E235................... ADOPTION
192E228-P2F2.............. ADOPTION
192E228-P3L1.............. ADOPTION
157A101-L2................ ADOPTION
151K095................... ADOPTION
Instruments cited:
294A1223(01)..............
Amended by:
AMENDED-BY.... 298A0912(01)...... ANN 10 BECOMES ANN 13
AMENDED-BY.... 298A0912(01)...... ANN 11 BECOMES ANN 16
AMENDED-BY.... 298A0912(01)...... ANN 12 BECOMES ANN 17
AMENDED-BY.... 298A0912(01)...... ANN 13 BECOMES ANN 18
AMENDED-BY.... 298A0912(01)...... ANN 14 BECOMES ANN 19
AMENDED-BY.... 298A0912(01)...... ANN 2 BECOMES ANN 5
AMENDED-BY.... 298A0912(01)...... ANN 3 BECOMES ANN 6
AMENDED-BY.... 298A0912(01)...... ANN 4 BECOMES ANN 7
AMENDED-BY.... 298A0912(01)...... ANN 5 BECOMES ANN 8
AMENDED-BY.... 298A0912(01)...... ANN 6 BECOMES ANN 9
AMENDED-BY.... 298A0912(01)...... ANN 7 BECOMES ANN 10
AMENDED-BY.... 298A0912(01)...... ANN 8 BECOMES ANN 11
AMENDED-BY.... 298A0912(01)...... ANN 9 BECOMES ANN 12
AMENDED-BY.... 298A0912(01)...... COMPLETION ART.20.1 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... COMPLETION ART.3 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... COMPLETION ART.34.3 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... COMPLETION ART.36.1 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... COMPLETION ART.5.1 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... ADDITION.. ANN 14 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... ADDITION.. ANN 15 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... ADDITION.. ANN 2 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... ADDITION.. ANN 3 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... ADDITION.. ANN 4 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... ADDITION.. ART.1.4BIS FR 23/7/98
AMENDED-BY.... 298A0912(01)...... AMENDMENT. ANN 13 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... AMENDMENT. ANN 16 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... AMENDMENT. ANN 6 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... AMENDMENT. ART.14.6 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... AMENDMENT. ART.21.4 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... AMENDMENT. ART.25.3 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... AMENDMENT. ART.36.4 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... AMENDMENT. ART.4 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... AMENDMENT. RECITAL FR 23/7/98
AMENDED-BY.... 298A0912(01)...... AMENDMENT. TITLE ANN 1 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... REPLACEMNT ANN 12 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... REPLACEMNT ART.1.11 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... REPLACEMNT ART.1.4 FR 23/7/98
AMENDED-BY.... 298A0912(01)...... REPLACEMNT ART.29 FR 23/7/98
IMPLEMENTED-BY 299A0116(01)...... IMPLEMENT. ART.7.7 FR 3/12/98
AMENDED-BY.... 394D0998.......... PROVISIONAL APPLICATION FR
15/12/94
LINKED-TO..... 394D1067.......... PROVISIONAL APPLICATION FR
15/12/94
ADOPTED-BY.... 398D0181.......... FR 23/9/97
ANNEX 1
THE ENERGY CHARTER TREATY
Preamble
THE CONTRACTING PARTIES TO THIS TREATY,
Having regard to the Charter of Paris for a New Europe signed on 21
November 1990,
Having regard to the European Energy Charter adopted in the
Concluding Document of the Hague Conference on the European Energy
Charter signed at The Hague on 17 December 1991,
Recalling that all signatories to the Concluding Document of the
Hague Conference undertook to pursue the objectives and principles
of the European Energy Charter and implement and broaden their
cooperation as soon as possible by negotiating in good faith an
Energy Charter Treaty and Protocols, and desiring to place the
commitments contained in that Charter on a secure and binding
international legal basis;
Desiring also to establish the structural framework required to
implement the principles enunciated in the European Energy Charter;
Wishing to implement the basic concept of the European Energy
Charter initiative which is to catalyse economic growth by means of
measures to liberalize investment and trade in energy;
Affirming that Contracting Parties attach the utmost importance to
the effective implementation of full national treatment and most
favoured nation treatment, and that these commitments will be
applied to the making of investments pursuant to a supplementary
treaty,
Having regard to the objective of progressive liberalization of
international trade and to the principle of avoidance of
discrimination in international trade as enunciated in the General
Agreement on Tariffs and Trade and its Related Instruments and as
otherwise provided for in this Treaty;
Determined progressively to remove technical, administrative and
other barriers to trade in energy materials and products and related
equipment, technologies and services;
Looking to the eventual membership in the General Agreement on
Tariffs and Trade of those Contracting Parties which are not
currently parties thereto and concerned to provide interim trade
arrangements which will assist those Contracting Parties and not
impede their preparation for such membership;
Mindful of the rights and obligations of certain Contracting Parties
which are also parties to the General Agreement on Tariffs and Trade
and its Related Instruments;
Having regard to competition rules concerning mergers, monopolies,
anti-competitive practices and abuse of dominant position,
Having regard also to the Treaty on the Non-Proliferation of Nuclear
Weapons, the Nuclear Suppliers Guidelines and other international
nuclear non-proliferation obligations or understandings,
Recognizing the necessity for the most efficient exploration,
production, conversion, storage, transport, distribution and use of
energy;
Recalling the United Nations Framework Convention on Climate Change,
the Convention on Long-Range Transboundary Air Pollution and its
protocols, and other international environmental agreements with
energy-related aspects; and
Recognizing the increasingly urgent need for measures to protect the
environment, including the decommissioning of energy installations
and waste disposal, and for internationally-agreed objectives and
criteria for these purposes,
HAVE AGREED AS FOLLOWS:
PART I DEFINITIONS AND PURPOSE
Article 1
Definitions
As used in this Treaty:
1. 'Charter` means the European Energy Charter adopted in the
Concluding Document of the Hague Conference on the European Energy
Charter signed at The Hague on 17 December 1991; signature of the
Concluding Document is considered to be signature of the Charter.
2. 'Contracting Party` means a State or Regional Economic
Integration Organization which has consented to be bound by this
Treaty and for which the Treaty is in force.
3. 'Regional Economic Integration Organization` means an
organization constituted by States to which they have transferred
competence over certain matters a number of which are governed by
this Treaty, including the authority to take decisions binding on
them in respect of those matters.
4. 'Energy materials and products`, based on the Harmonized System
of the Customs Cooperation Council and the combined nomenclature of
the European Communities, means the items included in Annex EM.
5. 'Economic activity in the energy sector` means an economic
activity concerning the exploration, extraction, refining,
production, storage, land transport, transmission, distribution,
trade, marketing, or sale of energy materials and products except
those included in Annex NI, or concerning the distribution of heat
to multiple premises.
6. 'Investment` means every kind of asset, owned or controlled
directly or indirectly by an investor and includes:
(a) tangible and intangible, and movable and immovable, property,
and any property rights such as leases, mortgages, liens, and
pledges;
(b) a company or business enterprise, or shares, stock, or other
forms of equity participation in a company or business enterprise,
and bonds and other debt of a company or business enterprise;
(c) claims to money and claims to performance pursuant to contract
having an economic value and associated with an investment;
(d) intellectual property;
(e) returns;
(f) any right conferred by law or contract or by virtue of any
licences and permits granted pursuant to law to undertake any
economic activity in the energy sector.
A change in the form in which assets are invested does not affect
their character as investments and the term 'investment` includes
all investments, whether existing at or made after the later of the
date of entry into force of this Treaty for the Contracting Party of
the investor making the investment and that for the Contracting
Party in the area of which the investment is made (hereinafter
referred to as the 'effective date`) provided that the Treaty shall
only apply to matters affecting such investments after the effective
date.
'Investment` refers to any investment associated with an economic
activity in the energy sector and to investments or classes of
investments designated by a Contracting Party in its area as
'Charter efficiency projects` and so notified to the Secretariat.
7. 'Investor` means:
(a) with respect to a Contracting Party:
(i) a natural person having the citizenship or nationality of or who
is permanently residing in that Contracting Party in accordance with
its applicable law;
(ii) a company or other organization organized in accordance with
the law applicable in that Contracting Party;
(b) with respect to a 'third State`, a natural person, company or
other organization which fulfils, mutatis mutandis, the conditions
specified in subparagraph (a) for a Contracting Party.
8. 'Make investments` or 'making of investments` means establishing
new investments, acquiring all or part of existing investments or
moving into different fields of investment activity.
9. 'Returns` means the amounts derived from or associated with an
investment, irrespective of the form in which they are paid,
including profits, dividends, interest, capital gains, royalty
payments, management, technical assistance or other fees and
payments in kind.
10. 'Area` means with respect to a State that is a Contracting
Party:
(a) the territory under its sovereignty, it being understood that
territory includes land, internal waters and the territorial sea;
and
(b) subject to and in accordance with the international law of the
sea: the sea, sea-bed and its subsoil with regard to which that
Contracting Party exercises sovereign rights and jurisdiction.
With respect to a Regional Economic Integration Organization which
is a Contracting Party, area means the areas of the Member States of
such Organization, under the provisions contained in the agreement
establishing that Organization.
11. (a) 'GATT` means 'GATT 1947` or 'GATT 1994`, or both of them
where both are applicable.
(b) 'GATT 1947` means the General Agreement on Tariffs and Trade,
dated 30 October 1947, annexed to the Final Act Adopted at the
Conclusion of the Second Session of the Preparatory Committee of the
United Nations Conference on Trade and Employment, as subsequently
rectified, amended or modified.
(c) 'GATT 1994` means the General Agreement on Tariffs and Trade as
specified in Annex 1A of the Agreement Establishing the World Trade
Organization, as subsequently rectified, amended or modified.
A party to the Agreement Establishing the World Trade Organization
is considered to be a party to GATT 1994.
(d) 'Related Instruments` means, as appropriate:
(i) agreements, arrangements or other legal instruments, including
decisions, declarations and understandings, concluded under the
auspices of GATT 1947 as subsequently rectified, amended or
modified; or
(ii) the Agreement Establishing the World Trade Organization
including its Annex 1 (except GATT 1994), its Annexes 2, 3 and 4,
and the decisions, declarations and understandings related thereto,
as subsequently rectified, amended or modified.
12. 'Intellectual property` includes copyrights and related rights,
trademarks, geographical indications, industrial designs, patents,
layout designs of integrated circuits and the protection of
undisclosed information.
13. (a) 'Energy Charter Protocol` or 'Protocol` means a treaty, the
negotiation of which is authorized and the text of which is adopted
by the Charter Conference, which is entered into by two or more
Contracting Parties in order to complement, supplement, extend or
amplify the provisions of this Treaty with respect to any specific
sector or category of activity within the scope of this Treaty, or
to areas of cooperation pursuant to Title III of the Charter.
(b) 'Energy Charter Declaration` or 'Declaration` means a
non-binding instrument, the negotiation of which is authorized and
the text of which is approved by the Charter Conference, which is
entered into by two or more Contracting Parties to complement or
supplement the provisions of this Treaty.
14. 'Freely convertible currency` means a currency which is widely
traded in international foreign exchange markets and widely used in
international transactions.
Article 2
Purpose of the Treaty
This Treaty establishes a legal framework in order to promote
long-term cooperation in the energy field, based on
complementarities and mutual benefits, in accordance with the
objectives and principles of the Charter.
PART II COMMERCE
Article 3
International markets
The Contracting Parties shall work to promote access to
international markets on commercial terms, and generally to develop
an open and competitive market, for energy materials and products.
Article 4
Non-derogation from GATT and Related Instruments
Nothing in this Treaty shall derogate, as between particular
Contracting Parties which are parties to the GATT, from the
provisions of the GATT and Related Instruments as they are applied
between those Contracting Parties.
Article 5
Trade-related investment measures
1. A Contracting Party shall not apply any trade- related investment
measure that is inconsistent with the provisions of Article III or
XI of the GATT; this shall be without prejudice to the Contracting
Party's rights and obligations under the GATT and Related
Instruments and Article 29.
2. Such measures include any investment measure which is mandatory
or enforceable under domestic law or under any administrative
ruling, or compliance with which is necessary to obtain an
advantage, and which requires:
(a) the purchase or use by an enterprise of products of domestic
origin or from any domestic source, whether specified in terms of
particular products, in terms of volume or value of products, or in
terms of a proportion of volume or value of its local production; or
(b) that an enterprise's purchase or use of imported products be
limited to an amount related to the volume or value of local
products that it exports;
or which restricts:
(c) the importation by an enterprise of products used in or related
to its local production, generally or to an amount related to the
volume or value of local production that it exports;
(d) the importation by an enterprise of products used in or related
to its local production by restricting its access to foreign
exchange to an amount related to the foreign exchange inflows
attributable to the enterprise; or
(e) the exportation or sale for export by an enterprise of products,
whether specified in terms of particular products, in terms of
volume or value of products, or in terms of a proportion of volume
or value of its local production.
3. Nothing in paragraph 1 shall be construed to prevent a
Contracting Party from applying the trade- related investment
measures described in subparagraphs 2 (a) and (c) as a condition of
eligibility for export promotion, foreign aid, government
procurement or preferential tariff or quota programmes.
4. Notwithstanding paragraph 1, a Contracting Party may temporarily
continue to maintain trade-related investment measures which were in
effect more than 180 days before its signature of this Treaty,
subject to the notification and phase-out provisions set out in
Annex TRM.
Article 6
Competition
1. Each Contracting Party shall work to alleviate market distortions
and barriers to competition in economic activity in the energy
sector.
2. Each Contracting Party shall ensure that within its jurisdiction
it has and enforces such laws as are necessary and appropriate to
address unilateral and concerted anti-competitive conduct in
economic activity in the energy sector.
3. Contracting Parties with experience in applying competition rules
shall give full consideration to providing, upon request and within
available resources, technical assistance on the development and
implementation of competition rules to other Contracting Parties.
4. Contracting Parties may cooperate in the enforcement of their
competition rules by consulting and exchanging information.
5. If a Contracting Party considers that any specified
anti-competitive conduct carried out within the area of another
Contracting Party is adversely affecting an important interest
relevant to the purposes identified in this Article, the Contracting
Party may notify the other Contracting Party and may request that
its competition authorities initiate appropriate enforcement action.
The notifying Contracting Party shall include in such notification
sufficient information to permit the notified Contracting Party to
identify the anti-competitive conduct that is the subject of the
notification and shall include an offer of such further information
and cooperation as the notifying Contracting Party is able to
provide. The notified Contracting Party or, as the case may be, the
relevant competition authorities may consult with the competition
authorities of the notifying Contracting Party and shall accord full
consideration to the request of the notifying Contracting Party in
deciding whether or not to initiate enforcement action with respect
to the alleged anti-competitive conduct identified in the
notification. The notified Contracting Party shall inform the
notifying Contracting Party of its decision or the decision of the
relevant competition authorities and may if it wishes inform the
notifying Contracting Party of the grounds for the decision. If
enforcement action is initiated, the notified Contracting Party
shall advise the notifying Contracting Party of its outcome and, to
the extent possible, of any significant interim development.
6. Nothing in this Article shall require the provision of
information by a Contracting Party contrary to its laws regarding
disclosure of information, confidentiality or business secrecy.
7. The procedures set forth in paragraph 5 and Article 27 (1) shall
be the exclusive means within this Treaty of resolving any disputes
that may arise over the implementation or interpretation of this
Article.
Article 7
Transit
1. Each Contracting Party shall take the necessary measures to
facilitate the transit of energy materials and products consistent
with the principle of freedom of transit and without distinction as
to the origin, destination or ownership of such energy materials and
products or discrimination as to pricing on the basis of such
distinctions, and without imposing any unreasonable delays,
restrictions or charges.
2. Contracting Parties shall encourage relevant entities to cooperate in:
(a) modernizing energy transport facilities necessary to the transit
of energy materials and products;
(b) the development and operation of energy transport facilities
serving the areas of more than one Contracting Party;
(c) measures to mitigate the effects of interruptions in the supply
of energy materials and products;
(d) facilitating the interconnection of energy transport facilities.
3. Each Contracting Party undertakes that its provisions relating to
transport of energy materials and products and the use of energy
transport facilities shall treat energy materials and products in
transit in no less favourable a manner than its provisions treat
such materials and products originating in or destined for its own
area, unless an existing international agreement provides otherwise.
4. In the event that transit of energy materials and products cannot
be achieved on commercial terms by means of energy transport
facilities the Contracting Parties shall not place obstacles in the
way of new capacity being established, except as may be otherwise
provided in applicable legislation which is consistent with
paragraph 1.
5. A Contracting Party through whose area energy materials and
products may transit shall not be obliged to
(a) permit the construction or modification of energy transport
facilities; or
(b) permit new or additional transit through existing energy
transport facilities,
which it demonstrates to the other Contracting Parties concerned
would endanger the security or efficiency of its energy systems,
including the security of supply.
Contracting Parties shall, subject to paragraphs 6 and 7, secure
established flows of energy materials and products to, from or
between the areas of other Contracting Parties.
6. A Contracting Party through whose area energy materials and
products transit shall not, in the event of a dispute over any
matter arising from that transit, interrupt or reduce, permit any
entity subject to its control to interrupt or reduce, or require any
entity subject to its jurisdiction to interrupt or reduce the
existing flow of energy materials and products prior to the
conclusion of the dispute resolution procedures set out in paragraph
7, except where this is specifically provided for in a contract or
other agreement governing such transit or permitted in accordance
with the conciliator's decision.
7. The following provisions shall apply to a dispute described in
paragraph 6, but only following the exhaustion of all relevant
contractual or other dispute resolution remedies previously agreed
between the Contracting Parties party to the dispute or between any
entity referred to in paragraph 6 and an entity of another
Contracting Party party to the dispute:
(a) A Contracting Party party to the dispute may refer it to the
Secretary-General by a notification summarizing the matters in
dispute. The Secretary-General shall notify all Contracting Parties
of any such referral.
(b) Within 30 days of receipt of such a notification, the
Secretary-General, in consultation with the parties to the dispute
and the other Contracting Parties concerned, shall appoint a
conciliator. Such a conciliator shall have experience in the matters
subject to dispute and shall not be a national or citizen of or
permanently resident in a party to the dispute or one of the other
Contracting Parties concerned.
(c) The conciliator shall seek the agreement of the parties to the
dispute to a resolution thereof or upon a procedure to achieve such
resolution. If within 90 days of his appointment he has failed to
secure such agreement, he shall recommend a resolution to the
dispute or a procedure to achieve such resolution and shall decide
the interim tariffs and other terms and conditions to be observed
for transit from a date which he shall specify until the dispute is
resolved.
(d) The Contracting Parties undertake to observe and ensure that the
entities under their control or jurisdiction observe any interim
decision under subparagraph (c) on tariffs, terms and conditions for
12 months following the conciliator's decision or until resolution
of the dispute, whichever is earlier.
(e) Notwithstanding subparagraph (b) the Secretary-General may elect
not to appoint a conciliator if in his judgement the dispute
concerns transit that is or has been the subject of the dispute
resolution procedures set out in subparagraphs (a) to (d) and those
proceedings have not resulted in a resolution of the dispute.
(f) The Charter Conference shall adopt standard provisions
concerning the conduct of conciliation and the compensation of
conciliators.
8. Nothing in this Article shall derogate from a Contracting Party's
rights and obligations under international law including customary
international law, existing bilateral or multilateral agreements,
including rules concerning submarine cables and pipelines.
9. This Article shall not be so interpreted as to oblige any
Contracting Party which does not have a certain type of energy
transport facilities used for transit to take any measure under this
Article with respect to that type of energy transport facilities.
Such a Contracting Party is, however, obliged to comply with
paragraph 4.
10. For the purposes of this Article:
(a) 'Transit` means:
(i) the carriage through the area of a Contracting Party, or to or
from port facilities in its area for loading or unloading, of energy
materials and products originating in the area of another State and
destined for the area of a third State, so long as either the other
State or the third State is a Contracting Party; or
(ii) the carriage through the area of a Contracting Party of energy
materials and products originating in the area of another
Contracting Party and destined for the area of that other
Contracting Party, unless the two Contracting Parties concerned
decide otherwise and record their decision by a joint entry in Annex
N. The two Contracting Parties may delete their listing in Annex N
by delivering a joint written notification of their intentions to
the Secretariat, which shall transmit that notification to all other
Contracting Parties. The deletion shall take effect four weeks after
such former notification.
(b) 'Energy transport facilities` consist of high-pressure gas
transmission pipelines, high-voltage electricity transmission grids
and lines, crude oil transmission pipelines, coal slurry pipelines,
oil product pipelines, and other fixed facilities specifically for
handling energy materials and products.
Article 8
Transfer of technology
1. The Contracting Parties agree to promote access to and transfer
of energy technology on a commercial and non-discriminatory basis to
assist effective trade in energy materials and products and
investment and to implement the objectives of the Charter subject to
their laws and regulations, and to the protection of intellectual
property rights.
2. Accordingly, to the extent necessary to give effect to paragraph
1 the Contracting Parties shall eliminate existing and create no new
obstacles to the transfer of technology in the field of energy
materials and products and related equipment and services, subject
to non-proliferation and other international obligations.
Article 9
Access to capital
1. The Contracting Parties acknowledge the importance of open
capital markets in encouraging the flow of capital to finance trade
in energy materials and products and for the making of and assisting
with regard to investments in economic activity in the energy sector
in the areas of other Contracting Parties, particularly those with
economies in transition. Each Contracting Party shall accordingly
endeavour to promote conditions for access to its capital market by
companies and nationals of other Contracting Parties, for the
purpose of financing trade in energy materials and products and for
the purpose of investment in economic activity in the energy sector
in the areas of those other Contracting Parties, on a basis no less
favourable than that which it accords in like circumstances to its
own companies and nationals or companies and nationals of any other
Contracting Party or any third State, whichever is the most
favourable.
2. A Contracting Party may adopt and maintain programmes providing
for access to public loans, grants, guarantees or insurance for
facilitating trade or investment abroad. It shall make such
facilities available, consistent with the objectives, constraints
and criteria of such programmes (including any objectives,
constraints or criteria relating to the place of business of an
applicant for any such facility or the place of delivery of goods or
services supplied with the support of any such facility) for
investments in the economic activity in the energy sector of other
Contracting Parties or for financing trade in energy materials and
products with other Contracting Parties.
3. Contracting Parties shall, in implementing programmes in economic
activity in the energy sector to improve the economic stability and
investment climates of the Contracting Parties, seek as appropriate
to encourage the operations and take advantage of the expertise of
relevant international financial institutions.
4. Nothing in this Article shall prevent:
(a) financial institutions from applying their own lending or
underwriting practices based on market principles and prudential
considerations; or
(b) a Contracting Party from taking measures:
(i) for prudential reasons, including the protection of investors,
consumers, depositors, policy- holders or persons to whom a
fiduciary duty is owed by a financial service supplier; or
(ii) to ensure the integrity and stability of its financial system
and capital markets.
PART III INVESTMENT PROMOTION AND PROTECTION
Article 10
Promotion, protection and treatment of investments
1. Each Contracting Party shall, in accordance with the provisions
of this Treaty, encourage and create stable, equitable, favourable
and transparent conditions for investors of other Contracting
Parties to make investments in its area. Such conditions shall
include a commitment to accord at all times to investments of
investors of other Contracting Parties fair and equitable treatment.
Such investments shall also enjoy the most constant protection and
security and no Contracting Party shall in any way impair by
unreasonable or discriminatory measures their management,
maintenance, use, enjoyment or disposal. In no case shall such
investments be accorded treatment less favourable than that required
by international law, including treaty obligations. Each Contracting
Party shall observe any obligations it has entered into with an
investor or an investment of an investor of any other Contracting
Party.
2. Each Contracting Party shall endeavour to accord to investors of
other Contracting Parties, as regards the making of investments in
its area, the treatment described in paragraph 3.
3. For the purposes of this Article, 'treatment` means treatment
accorded by a Contracting Party which is no less favourable than
that which it accords to its own investors or to investors of any
other Contracting Party or any third State, whichever is the most
favourable.
4. A supplementary treaty shall, subject to conditions to be laid
down therein, oblige each party thereto to accord to investors of
other parties, as regards the making of investments in its area, the
treatment described in paragraph 3. That treaty shall be open for
signature by the States and Regional Economic Integration
Organizations which have signed or acceded to this Treaty.
Negotiations towards the supplementary treaty shall commence not
later than 1 January 1995, with a view to concluding it by 1 January
5. Each Contracting Party shall, as regards the making of
investments in its area, endeavour to:
(a) limit to the minimum the exceptions to the Treatment described
in paragraph 3;
(b) progressively remove existing restrictions affecting investors
of other Contracting Parties.
6. (a) A Contracting Party may, as regards the making of investments
in its area, at any time declare voluntarily to the Charter
Conference, through the Secretariat, its intention not to introduce
new exceptions to the treatment described in paragraph 3.
(b) A Contracting Party may, furthermore, at any time make a
voluntary commitment to accord to investors of other Contracting
Parties, as regards the making of investments in some or all
economic activities in the energy sector in its area, the treatment
described in paragraph 3. Such commitments shall be notified to the
Secretariat and listed in Annex VC and shall be binding under this
Treaty.
7. Each Contracting Party shall accord to investments in its area of
investors of other Contracting Parties, and their related activities
including management, maintenance, use, enjoyment or disposal,
treatment no less favourable than that which it accords to
investments of its own investors or of the investors of any other
Contracting Party or any third State and their related activities
including management, maintenance, use, enjoyment or disposal,
whichever is the most favourable.
8. The modalities of application of paragraph 7 in relation to
programmes under which a Contracting Party provides grants or other
financial assistance, or enters into contracts, for energy
technology research and development, shall be reserved for the
supplementary treaty described in paragraph 4. Each Contracting
Party shall through the Secretariat keep the Charter Conference
informed of the modalities it applies to the programmes described in
this paragraph.
9. Each State or Regional Economic Integration Organization which
signs or accedes to this Treaty shall, on the date it signs the
Treaty or deposits its instrument of accession, submit to the
Secretariat a report summarizing all laws, regulations or other
measures relevant to:
(a) exceptions to paragraph 2; or
(b) the programmes referred to in paragraph 8.
A Contracting Party shall keep its report up to date by promptly
submitting amendments to the Secretariat. The Charter Conference
shall review these reports periodically.
In respect of subparagraph (a) the report may designate parts of the
energy sector in which a Contracting Party accords to investors of
other Contracting Parties the treatment described in paragraph 3.
In respect of subparagraph (b) the review by the Charter Conference
may consider the effects of such programmes on competition and
investments.
10. Notwithstanding any other provision of this Article, the
treatment described in paragraphs 3 and 7 shall not apply to the
protection of intellectual property; instead, the treatment shall be
as specified in the corresponding provisions of the applicable
international agreements for the protection of intellectual property
rights to which the respective Contracting Parties are parties.
11. For the purposes of Article 26, the application by a Contracting
Party of a trade-related investment measure as described in Article
5 (1) and (2) to an investment of an investor of another Contracting
Party existing at the time of such application shall, subject to
Article 5 (3) and (4), be considered a breach of an obligation of
the former Contracting Party under this part.
12. Each Contracting Party shall ensure that its domestic law
provides effective means for the assertion of claims and the
enforcement of rights with respect to investments, investment
agreements, and investment authorizations.
Article 11
Key personnel
1. A Contracting Party shall, subject to its laws and regulations
relating to the entry, stay and work of natural persons, examine in
good faith requests by investors of another Contracting Party, and
key personnel who are employed by such investors or by investments
of such investors, to enter and remain temporarily in its area to
engage in activities connected with the making or the development,
management, maintenance, use, enjoyment or disposal of relevant
investments, including the provision of advice or key technical
services.
2. A Contracting Party shall permit investors of another Contracting
Party which have investments in its area, and investments of such
investors, to employ any key person of the investor's or the
investment's choice regardless of nationality and citizenship
provided that such key person has been permitted to enter, stay and
work in the area of the former Contracting Party and that the
employment concerned conforms to the terms, conditions and time
limits of the permission granted to such key person.
Article 12
Compensation for losses
1. Except where Article 13 applies, an investor of any Contracting
Party which suffers a loss with respect to any investment in the
area of another Contracting Party owing to war or other armed
conflict, state of national emergency, civil disturbance, or other
similar event in that area, shall be accorded by the latter
Contracting Party, as regards restitution, indemnification,
compensation or other settlement, treatment which is the most
favourable of that which that Contracting Party accords to any other
investor, whether its own investor, the investor of any other
Contracting Party, or the investor of any third State.
2. Without prejudice to paragraph 1, an investor of a Contracting
Party which, in any of the situations referred to in that paragraph,
suffers a loss in the area of another Contracting Party resulting
from:
(a) requisitioning of its investment or part thereof by the latter's
forces or authorities; or
(b) destruction of its investment or part thereof by the latter's
forces or authorities, which was not required by the necessity of
the situation;
shall be accorded restitution or compensation which in either case
shall be prompt, adequate and effective.
Article 13
Expropriation
1. Investments of investors of a Contracting Party in the area of
any other Contracting Party shall not be nationalized, expropriated
or subjected to a measure or measures having effect equivalent to
nationalization or expropriation (hereinafter referred to as
'expropriation`) except where such expropriation is:
(a) for a purpose which is in the public interest;
(b) not discriminatory;
(c) carried out under due process of law; and
(d) accompanied by the payment of prompt, adequate and effective
compensation.
Such compensation shall amount to the fair market value of the
investment expropriated at the time immediately before the
expropriation or impending expropriation became known in such a way
as to affect the value of the investment (hereinafter referred to as
the 'valuation date`).
Such fair market value shall at the request of the investor be
expressed in a freely convertible currency on the basis of the
market rate of exchange existing for that currency on the valuation
date. Compensation shall also include interest at a commercial rate
established on a market basis from the date of expropriation until
the date of payment.
2. The investor affected shall have a right to prompt review, under
the law of the Contracting Party making the expropriation, by a
judicial or other competent and independent authority of that
Contracting Party, of its case, of the valuation of its investment,
and of the payment of compensation, in accordance with the
principles set out in paragraph 1.
3. For the avoidance of doubt, expropriation shall include
situations where a Contracting Party expropriates the assets of a
company or enterprise in its area in which an investor of any other
Contracting Party has an investment, including through the ownership
of shares.
Article 14
Transfers related to investments
1. Each Contracting Party shall with respect to investments in its
area of investors of any other Contracting Party guarantee the
freedom of transfer into and out of its area, including the transfer
of:
(a) the initial capital plus any additional capital for the
maintenance and development of an investment;
(b) returns;
(c) payments under a contract, including amortization of principal
and accrued interest payments pursuant to a loan agreement;
(d) unspent earnings and other remuneration of personnel engaged
from abroad in connection with that investment;
(e) proceeds from the sale or liquidation of all or any part of an
investment;
(f) payments arising out of the settlement of a dispute;
(g) payments of compensation pursuant to Articles 12 and 13.
2. Transfers pursuant to paragraph 1 shall be effected without delay
and (except in case of a return in kind) in a freely convertible
currency.
3. Transfers shall be made at the market rate of exchange existing
on the date of transfer with respect to spot transactions in the
currency to be transferred. In the absence of a market for foreign
exchange, the rate to be used will be the most recent rate applied
to inward investments or the most recent exchange rate for
conversion of currencies into special drawing rights, whichever is
more favourable to the investor.
4. Notwithstanding paragraphs 1 to 3, a Contracting Party may
protect the rights of creditors, or ensure compliance with laws on
the issuing, trading and dealing in securities and the satisfaction
of judgements in civil, administrative and criminal adjudicatory
proceedings, through the equitable, non-discriminatory, and good
faith application of its laws and regulations.
5. Notwithstanding paragraph 2, Contracting Parties which are States
that were constituent parts of the former Union of Soviet Socialist
Republics may provide in agreements concluded between them that
transfers of payments shall be made in the currencies of such
Contracting Parties, provided that such agreements do not treat
investments in their areas of investors of other Contracting Parties
less favourably than either investments of investors of the
Contracting Parties which have entered into such agreements or
investments of investors of any third State.
6. Notwithstanding subparagraph 1 (b), a Contracting Party may
restrict the transfer of a return in kind in circumstances where the
Contracting Party is permitted pursuant to Article 29 (2) (a) or the
GATT and Related Instruments to restrict or prohibit the exportation
or the sale for export of the product constituting the return in
kind; provided that a Contracting Party shall permit transfers of
returns in kind to be effected as authorized or specified in an
investment agreement, investment authorization, or other written
agreement between the Contracting Party and either an investor of
another Contracting Party or its investment.
Article 15
Subrogation
1. If a Contracting Party or its designated agency (hereinafter
referred to as the 'Indemnifying Party`) makes a payment under an
indemnity or guarantee given in respect of an investment of an
investor (hereinafter referred to as the 'Party Indemnified`) in the
area of another Contracting Party (hereinafter referred to as the
'Host Party`), the Host Party shall recognize:
(a) the assignment to the Indemnifying Party of all the rights and
claims in respect of such investment; and
(b) the right of the Indemnifying Party to exercise all such rights
and enforce such claims by virtue of subrogation.
2. The Indemnifying Party shall be entitled in all circumstances to:
(a) the same treatment in respect of the rights and claims acquired
by it by virtue of the assignment referred to in paragraph 1; and
(b) the same payments due pursuant to those rights and claims,
as the Party Indemnified was entitled to receive by virtue of this
Treaty in respect of the investment concerned.
3. In any proceeding pursuant to Article 26, a Contracting Party
shall not assert as a defence, counterclaim, right of set-off or for
any other reason, that indemnification or other compensation for all
or part of the alleged damages has been received or will be received
pursuant to an insurance or guarantee contract.
Article 16
Relation to other agreements
Where two or more Contracting Parties have entered into a prior
international agreement, or enter into a subsequent international
agreement, whose terms in either case concern the subject matter of
Part III or V of this Treaty;
1. nothing in Part III or V of this Treaty shall be construed to
derogate from any provision of such terms of the other agreement or
from any right to dispute resolution with respect thereto under that
agreement; and
2. nothing in such terms of the other agreement shall be construed
to derogate from any provision of Part III or V of this Treaty or
from any right to dispute resolution with respect thereto under this
Treaty;
where any such provision is more favourable to the investor or
investment.
Article 17
Non-application of Part III in certain circumstances
Each Contracting Party reserves the right to deny the advantages of
this part to:
1. a legal entity if citizens or nationals of a third State own or
control such entity and if that entity has no substantial business
activities in the area of the Contracting Party in which it is
organized; or
2. an investment, if the denying Contracting Party establishes that
such investment is an investment of an investor of a third State
with or as to which the denying Contracting Party:
(a) does not maintain a diplomatic relationship; or
(b) adopts or maintains measures that:
(i) prohibit transactions with investors of that State; or
(ii) would be violated or circumvented if the benefits of this part
were accorded to investors of that State or to their investments.
PART IV MISCELLANEOUS PROVISIONS
Article 18
Sovereignty over energy resources
1. The Contracting Parties recognize State sovereignty and sovereign
rights over energy resources. They reaffirm that these must be
exercised in accordance with and subject to the rules of
international law.
2. Without affecting the objectives of promoting access to energy
resources, and exploration and development thereof on a commercial
basis, the Treaty shall in no way prejudice the rules in Contracting
Parties governing the system of property ownership of energy
resources.
3. Each State continues to hold in particular the rights to decide
the geographical areas within its area to be made available for
exploration and development of its energy resources, the
optimalization of their recovery and the rate at which they may be
depleted or otherwise exploited, to specify and enjoy any taxes,
royalties or other financial payments payable by virtue of such
exploration and exploitation, and to regulate the environmental and
safety aspects of such exploration, development and reclamation
within its area, and to participate in such exploration and
exploitation, inter alia, through direct participation by the
government or through State enterprises.
4. The Contracting Parties undertake to facilitate access to energy
resources, inter alia, by allocating in a non-discriminatory manner
on the basis of published criteria authorizations, licences,
concessions and contracts to prospect and explore for or to exploit
or extract energy resources.
Article 19
Environmental aspects
1. In pursuit of sustainable development and taking into account its
obligations under those international agreements concerning the
environment to which it is party, each Contracting Party shall
strive to minimize in an economically efficient manner harmful
environmental impacts occurring either within or outside its area
from all operations within the energy cycle in its area, taking
proper account of safety. In doing so each Contracting Party shall
act in a cost-effective manner. In its policies and actions each
Contracting Party shall strive to take precautionary measures to
prevent or minimize environmental degradation. The Contracting
Parties agree that the polluter in the areas of Contracting Parties,
should, in principle, bear the cost of pollution, including
transboundary pollution, with due regard to the public interest and
without distorting investment in the energy cycle or international
trade. Contracting Parties shall accordingly:(a) take account of environmental considerations throughout the
formulation and implementation of their energy policies;
(b) promote market-oriented price formation and a fuller reflection
of environmental costs and benefits throughout the energy cycle;
(c) having regard to Article 34 (4), encourage cooperation in the
attainment of the environmental objectives of the Charter and
cooperation in the field of international environmental standards
for the energy cycle, taking into account differences in adverse
effects and abatement costs between Contracting Parties;
(d) have particular regard to improving energy efficiency, to
developing and using renewable energy sources, to promoting the use
of cleaner fuels and to employing technologies and technological
means that reduce pollution;
(e) promote the collection and sharing among Contracting Parties of
information on environmentally sound and economically efficient
energy policies and cost-effective practices and technologies;
(f) promote public awareness of the environmental impacts of energy
systems, of the scope for the prevention or abatement of their
adverse environmental impacts, and of the costs associated with
various prevention or abatement measures;
(g) promote and cooperate in the research, development and
application of energy efficient and environmentally sound
technologies, practices and processes which will minimize harmful
environmental impacts of all aspects of the energy cycle in an
economically efficient manner;
(h) encourage favourable conditions for the transfer and
dissemination of such technologies consistent with the adequate and
effective protection of intellectual property rights;
(i) promote the transparent assessment at an early stage and prior
to decision, and subsequent monitoring, of environmental impacts of
environmentally significant energy investment projects;
(j) promote international awareness and information exchange on
Contracting Parties' relevant environmental programmes and standards
and on the implementation of those programmes and standards;
(k) participate, upon request, and within their available resources,
in the development and implementation of appropriate environmental
programmes in the Contracting Parties.
2. At the request of one or more Contracting Parties, disputes
concerning the application or interpretation of provisions of this
Article shall, to the extent that arrangements for the consideration
of such disputes do not exist in other appropriate international
fora, be reviewed by the Charter Conference aiming at a solution.
3. For the purposes of this Article:
(a) 'energy cycle` means the entire energy chain, including
activities related to prospecting for, exploration, production,
conversion, storage, transport, distribution and consumption of the
various forms of energy, and the treatment and disposal of wastes,
as well as the decommissioning, cessation or closure of these
activities, minimizing harmful environmental impacts;
(b) 'environmental impact` means any effect caused by a given
activity on the environment, including human health and safety,
flora, fauna, soil, air, water, climate, landscape and historical
monuments or other physical structures or the interactions among
these factors; it also includes effects on cultural heritage or
socio-economic conditions resulting from alterations to those
factors;
(c) 'improving energy efficiency` means acting to maintain the same
unit of output (of a good or service) without reducing the quality
or performance of the output, while reducing the amount of energy
required to produce that output;
(d) 'cost-effective` means to achieve a defined objective at the
lowest cost or to achieve the greatest benefit at a given cost.
Article 20
Transparency
1. Laws, regulations, judicial decisions and administrative rulings
of general application which affect trade in energy materials and
products are, in accordance with Article 29 (2) (a), among the
measures subject to the transparency disciplines of the GATT and
relevant Related Instruments.
2. Laws, regulations, judicial decisions and administrative rulings
of general application made effective by any Contracting Party, and
agreements in force between Contracting Parties, which affect other
matters covered by this Treaty shall also be published promptly in
such a manner as to enable Contracting Parties and investors to
become acquainted with them. The provisions of this paragraph shall
not require any Contracting Party to disclose confidential
information which would impede law enforcement or otherwise be
contrary to the public interest or would prejudice the legitimate
commercial interests of any investor.
3. Each Contracting Party shall designate one or more enquiry points
to which requests for information about the abovementioned laws,
regulations, judicial decisions and administrative rulings may be
addressed and shall communicate promptly such designation to the
Secretariat which shall make it available on request.
Article 21
Taxation
1. Except as otherwise provided in this Article, nothing in this
Treaty shall create rights or impose obligations with respect to
taxation measures of the Contracting Parties. In the event of any
inconsistency between this Article and any other provision of the
Treaty, this Article shall prevail to the extent of the
inconsistency.
2. Article 7 (3) shall apply to taxation measures other than those
on income or on capital, except that such provision shall not apply
to:
(a) an advantage accorded by a Contracting Party pursuant to the tax
provisions of any convention, agreement or arrangement described in
subparagraph (7) (a) (ii); or
(b) any taxation measure aimed at ensuring the effective collection
of taxes, except where the measure of a Contracting Party
arbitrarily discriminates against energy materials and products
originating in, or destined for the area of another Contracting
Party or arbitrarily restricts benefits accorded pursuant to Article
7 (3).
3. Article 10 (2) and (7) shall apply to taxation measures of the
Contracting Parties other than those on income or on capital, except
that such provisions shall not apply to:
(a) impose most favoured nation obligations with respect to
advantages accorded by a Contracting Party pursuant to the tax
provisions of any convention, agreement or arrangement described in
subparagraph (7) (a) (ii) or resulting from membership of any
Regional Economic Integration Organization; or
(b) any taxation measure aimed at ensuring the effective collection
of taxes, except where the measure arbitrarily discriminates against
an investor of another Contracting Party or arbitrarily restricts
benefits accorded under the investment provisions of this Treaty.
5. (a) Article 13 shall apply to taxes.
(b) Whenever an issue arises pursuant to Article 13, to the extent
it pertains to whether a tax constitutes an expropriation or whether
a tax alleged to constitute an expropriation is discriminatory, the
following provisions shall apply:
(i) the investor or the Contracting Party alleging expropriation
shall refer the issue of whether the tax is an expropriation or
whether the tax is discriminatory to the relevant competent tax
authority. Failing such referral by the investor or the Contracting
Party, bodies called upon to settle disputes pursuant to Article 26
(2) (c) or 27 (2) shall make a referral to the relevant competent
tax authorities;
(ii) the competent tax authorities shall, within a period of six
months of such referral, strive to resolve the issues so referred.
Where non-discrimination issues are concerned, the competent tax
authorities shall apply the non-discrimination provisions of the
relevant tax convention or, if there is no non-discrimination
provision in the relevant tax convention applicable to the tax or no
such tax convention is in force between the Contracting Parties
concerned, they shall apply the non-discrimination principles
pursuant to the Model Tax Convention on Income and Capital of the
Organization for Economic Cooperation and Development;
(iii) bodies called upon to settle disputes pursuant to Article 26
(2) (c) or 27 (2) may take into account any conclusions arrived at
by the competent tax authorities regarding whether the tax is an
expropriation. Such bodies shall take into account any conclusions
arrived at within the six-month period prescribed in subparagraph
(b) (ii) by the competent tax authorities regarding whether the tax
is discriminatory. Such bodies may also take into account any
conclusions arrived at by the competent tax authorities after the
expiry of the six-month period;
(iv) under no circumstances shall involvement of the competent tax
authorities, beyond the end of the six-month period referred to in
subparagraph (b) (ii), lead to a delay of proceedings pursuant to
Articles 26 and 27.
6. For the avoidance of doubt, Article 14 shall not limit the right
of a Contracting Party to impose or collect a tax by withholding or
other means.
7. For the purposes of this Article:
(a) The term 'taxation measure` includes:
(i) any provision relating to taxes of the domestic law of the
Contracting Party or of a political subdivision thereof or a local
authority therein; and
(ii) any provision relating to taxes of any convention for the
avoidance of double taxation or of any other international agreement
or arrangement by which the Contracting Party is bound.
(b) There shall be regarded as taxes on income or on capital all
taxes imposed on total income, on total capital or on elements of
income or of capital, including taxes on gains from the alienation
of property, taxes on estates, inheritances and gifts, or
substantially similar taxes, taxes on the total amounts of wages or
salaries paid by enterprises, as well as taxes on capital
appreciation.
(c) A 'competent tax authority` means the competent authority
pursuant to a double taxation agreement in force between the
Contracting Parties or, when no such agreement is in force, the
minister or ministry responsible for taxes or their authorized
representatives.
(d) For the avoidance of doubt, the terms 'tax provisions` and
'taxes` do not include customs duties.
Article 22
State and privileged enterprises
1. Each Contracting Party shall ensure that any State enterprise
which it maintains or establishes shall conduct its activities in
relation to the sale or provision of goods and services in its area
in a manner consistent with the Contracting Party's obligations
pursuant to Part III of this Treaty.
2. No Contracting Party shall encourage or require such a State
enterprise to conduct its activities in its area in a manner
inconsistent with the Contracting Party's obligations pursuant to
other provisions of this Treaty.
3. Each Contracting Party shall ensure that if it establishes or
maintains an entity and entrusts the entity with regulatory,
administrative or other governmental authority, such entity shall
exercise that authority in a manner consistent with the Contracting
Party's obligations pursuant to this Treaty.
4. No Contracting Party shall encourage or require any entity to
which it grants exclusive or special privileges to conduct its
activities in its area in a manner inconsistent with the Contracting
Party's obligations pursuant to this Treaty.
5. For the purposes of this Article, 'entity` includes any
enterprise, agency or other organization or individual.
Article 23
Observance by sub-national authorities
1. Each Contracting Party is fully responsible pursuant to this
Treaty for the observance of all provisions of the Treaty, and shall
take such reasonable measures as may be available to it to ensure
such observance by regional and local governments and authorities
within its area.
2. The dispute settlement provisions in Parts II, IV and V of this
Treaty may be invoked in respect of measures affecting the
observance of the Treaty by a Contracting Party which have been
taken by regional or local governments or authorities within the
area of the Contracting Party.
Article 24
Exceptions
2. The provisions of this Treaty other than:
(a) those referred to in paragraph 1; and
(b) with respect to subparagraph (i), Part III of the Treaty;
shall not preclude any Contracting Party from adopting or enforcing
any measure:
(i) necessary to protect human, animal or plant life or health;
(ii) essential to the acquisition or distribution of energy
materials and products in conditions of short supply arising from
causes outside the control of that Contracting Party, provided that
any such measure shall be consistent with the principles that;
(A) all other Contracting Parties are entitled to an equitable share
of the international supply of such energy materials and products;
and
(B) any such measure that is inconsistent with this Treaty shall be
discontinued as soon as the conditions giving rise to it have ceased
to exist; or
(iii) designed to benefit investors who are aboriginal people or
socially or economically disadvantaged individuals or groups or
their investments and notified to the Secretariat as such, provided
that such measure:
(A) has no significant impact on that Contracting Party's economy;
and
(B) does not discriminate between investors of any other Contracting
Party and investors of that Contracting Party not included among
those for whom the measure is intended;
provided that no such measure shall constitute a disguised
restriction on economic activity in the energy sector, or arbitrary
or unjustifiable discrimination between Contracting Parties or
between investors or other interested persons of Contracting
Parties. Such measures shall be duly motivated and shall not nullify
or impair any benefit one or more other Contracting Parties may
reasonably expect pursuant to this Treaty to an extent greater than
is strictly necessary to the stated end.
3. The provisions of this Treaty other than those referred to in
paragraph 1 shall not be construed to prevent any Contracting Party
from taking any measure which it considers necessary:
(a) for the protection of its essential security interests including
those:
(i) relating to the supply of energy materials and products to a
military establishment; or
(ii) taken in time of war, armed conflict or other emergency in
international relations;
(b) relating to the implementation of national policies respecting
the non-proliferation of nuclear weapons or other nuclear explosive
devices or needed to fulfil its obligations pursuant to the Treaty
on the Non-Proliferation of Nuclear Weapons, the Nuclear Suppliers
Guidelines, and other international nuclear non-proliferation
obligations or understandings; or
(c) for the maintenance of public order.
Such measure shall not constitute a disguised restriction on
transit.
4. The provisions of this Treaty which accord most favoured nation
treatment shall not oblige any Contracting Party to extend to the
investors of any other Contracting Party any preferential treatment:
(a) resulting from its membership of a free-trade area or customs
union; or
(b) which is accorded by a bilateral or multilateral agreement
concerning economic cooperation between States that were constituent
parts of the former Union of Soviet Socialist Republics pending the
establishment of their mutual economic relations on a definitive
basis.
Article 25
Economic Integration Agreements
1. The provisions of this Treaty shall not be so construed as to
oblige a Contracting Party which is party to an Economic Integration
Agreement (hereinafter referred to as 'EIA`) to extend, by means of
most favoured nation treatment, to another Contracting Party which
is not a party to that EIA, any preferential treatment applicable
between the parties to that EIA as a result of their being parties
thereto.
2. For the purposes of paragraph 1, 'EIA` means an agreement
substantially liberalizing, inter alia, trade and investment, by
providing for the absence or elimination of substantially all
discrimination between or among parties thereto through the
elimination of existing discriminatory measures and/or the
prohibition of new or more discriminatory measures, either at the
entry into force of that agreement or on the basis of a reasonable
time frame.
3. This Article shall not affect the application of the GATT and
Related Instruments according to Article 29.
PART V DISPUTE SETTLEMENT
Article 26
Settlement of disputes between an investor and a Contracting Party
1. Disputes between a Contracting Party and an investor of another
Contracting Party relating to an investment of the latter in the
area of the former, which concern an alleged breach of an obligation
of the former under Part III shall, if possible, be settled
amicably.
2. If such disputes can not be settled according to the provisions
of paragraph 1 within a period of three months from the date on
which either party to the dispute requested amicable settlement, the
investor party to the dispute may choose to submit it for
resolution:
(a) to the courts or administrative tribunals of the Contracting
Party party to the dispute;
(b) in accordance with any applicable, previously agreed dispute
settlement procedure; or
(c) in accordance with the following paragraphs of this Article.
3. (a) Subject only to subparagraphs (b) and (c), each Contracting
Party hereby gives its unconditional consent to the submission of a
dispute to international arbitration or conciliation in accordance
with the provisions of this Article.
(b) (i) The Contracting Parties listed in Annex ID do not give such
unconditional consent where the investor has previously submitted
the dispute under subparagraph (2) (a) or (b).
(ii) For the sake of transparency, each Contracting Party that is
listed in Annex ID shall provide a written statement of its
policies, practices and conditions in this regard to the Secretariat
no later than the date of the deposit of its instrument of
ratification, acceptance or approval in accordance with Article 39
or the deposit of its instrument of accession in accordance with
Article 41.
(c) A Contracting Party listed in Annex IA does not give such
unconditional consent with respect to a dispute arising under the
last sentence of Article 10 (1).
4. In the event that an investor chooses to submit the dispute for
resolution under subparagraph (2) (c), the investor shall further
provide its consent in writing for the dispute to be submitted to:
(a) (i) the International Centre for Settlement of Investment
Disputes, established pursuant to the Convention on the Settlement
of Investment Disputes between States and Nationals of other States
opened for signature at Washington, 18 March 1965 (hereinafter
referred to as the 'Icsid Convention`), if the Contracting Party of
the investor and the Contracting Party party to the dispute are both
parties to the Icsid Convention; or
(ii) the International Centre for Settlement of Investment Disputes,
established pursuant to the Convention referred to in subparagraph
(a) (i), under the rules governing the Additional Facility for the
Administration of Proceedings by the Secretariat of the Centre
(hereinafter referred to as the 'Additional Facility Rules`), if the
Contracting Party of the investor or the Contracting Party party to
the dispute, but not both, is a party to the Icsid Convention;
(b) a sole arbitrator or ad hoc arbitration tribunal established
under the Arbitration Rules of the United Nations Commission on
International Trade Law (hereinafter referred to as 'Uncitral`); or
(c) an arbitral proceeding under the Arbitration Institute of the
Stockholm Chamber of Commerce.
5. (a) The consent given in paragraph 3 together with the written
consent of the investor given pursuant to paragraph 4 shall be
considered to satisfy the requirement for:
(i) written consent of the parties to a dispute for purposes of
Chapter II of the Icsid Convention and for purposes of the
Additional Facility Rules;
(ii) an 'agreement in writing` for purposes of Article II of the
United Nations Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, done at New York, 10 June 1958 (hereinafter
referred to as the 'New York Convention`); and
(iii) 'the parties to a contract (to) have agreed in writing` for
the purposes of Article 1 of the Uncitral Arbitration Rules.
(b) Any arbitration pursuant to this Article shall at the request of
any party to the dispute be held in a State that is a party to the
New York Convention. Claims submitted to arbitration hereunder shall
be considered to arise out of a commercial relationship or
transaction for the purposes of Article I of that Convention.
6. A tribunal established pursuant to paragraph 4 shall decide the
issues in dispute in accordance with this Treaty and applicable
rules and principles of international law.
7. An investor other than a natural person which has the nationality
of a Contracting Party party to the dispute on the date of the
consent in writing referred to in paragraph 4 and which, before a
dispute between it and that Contracting Party arises, is controlled
by investors of another Contracting Party, shall for the purpose of
Article 25 (2) (b) of the Icsid Convention be treated as a 'national
of another Contracting State` and shall for the purpose of Article 1
(6) of the Additional Facility Rules be treated as a 'national of
another State`.
8. The awards of arbitration, which may include an award of
interest, shall be final and binding upon the parties to the
dispute. An award of arbitration concerning a measure of a
sub-national government or authority of the disputing Contracting
Party shall provide that the Contracting Party may pay monetary
damages in lieu of any other remedy granted. Each Contracting Party
shall carry out without delay any such award and shall make
provision for the effective enforcement in its area of such awards.
Article 27
Settlement of disputes between Contracting Parties
1. Contracting Parties shall endeavour to settle disputes concerning
the application or interpretation of this Treaty through diplomatic
channels.
2. If a dispute has not been settled in accordance with paragraph 1
within a reasonable period of time, either party thereto may, except
as otherwise provided in this Treaty or agreed in writing by the
Contracting Parties, and except as concerns the application or
interpretation of Article 6 or Article 19 or, for Contracting
Parties listed in Annex IA, the last sentence of Article 10 (1),
upon written notice to the other party to the dispute submit the
matter to an ad hoc tribunal pursuant to this Article.
3. Such an ad hoc arbitral tribunal shall be constituted as follows:
(a) The Contracting Party instituting the proceedings shall appoint
one member of the tribunal and inform the other Contracting Party to
the dispute of its appointment within 30 days of receipt of the
notice referred to in paragraph 2 by the other Contracting Party.
(b) Within 60 days of the receipt of the written notice referred to
in paragraph 2, the other Contracting Party party to the dispute
shall appoint one member. If the appointment is not made within the
time limit prescribed, the Contracting Party having instituted the
proceedings may, within 90 days of the receipt of the written notice
referred to in paragraph 2, request that the appointment be made in
accordance with subparagraph (d).
(c) A third member, who may not be a national or citizen of a
Contracting Party party to the dispute, shall be appointed by the
Contracting Parties parties to the dispute. That member shall be the
President of the tribunal. If, within 150 days of the receipt of the
notice referred to in paragraph 2, the Contracting Parties are
unable to agree on the appointment of a third member, that
appointment shall be made, in accordance with subparagraph (d), at
the request of either Contracting Party submitted within 180 days of
the receipt of that notice.
(d) Appointments requested to be made in accordance with this
paragraph shall be made by the Secretary-General of the Permanent
Court of International Arbitration within 30 days of the receipt of
a request to do so. If the Secretary-General is prevented from
discharging this task, the appointments shall be made by the First
Secretary of the Bureau. If the latter, in turn, is prevented from
discharging this task, the appointments shall be made by the most
senior deputy.
(e) Appointments made in accordance with subparagraphs (a) to (d)
shall be made with regard to the qualifications and experience,
particularly in matters covered by this Treaty, of the members to be
appointed.
(f) In the absence of an agreement to the contrary between the
Contracting Parties, the Arbitration Rules of Uncitral shall govern,
except to the extent modified by the Contracting Parties parties to
the dispute or by the arbitrators. The tribunal shall take its
decisions by a majority vote of its members.
(g) The tribunal shall decide the dispute in accordance with this
Treaty and applicable rules and principles of international law.
(h) The arbitral award shall be final and binding upon the
Contracting Parties parties to the dispute.
(i) Where, in making an award, a tribunal finds that a measure of a
regional or local government or authority within the area of a
Contracting Party listed in Part I of Annex P is not in conformity
with this Treaty, either party to the dispute may invoke the
provisions of Part II of Annex P.
(j) The expenses of the tribunal, including the remuneration of its
members, shall be borne in equal shares by the Contracting Parties
parties to the dispute. The tribunal may, however, at its discretion
direct that a higher proportion of the costs be paid by one of the
Contracting Parties parties to the dispute.
(k) Unless the Contracting Parties parties to the dispute agree
otherwise, the tribunal shall sit in The Hague, and use the premises
and facilities of the Permanent Court of Arbitration.
(l) A copy of the award shall be deposited with the Secretariat
which shall make it generally available.
Article 28
Non-application of Article 27 to certain disputes
A dispute between Contracting Parties with respect to the
application or interpretation of Article 5 or 29 shall not be
settled pursuant to Article 27 unless the Contracting Parties
parties to the dispute so agree.
PART VI TRANSITIONAL PROVISIONS
Article 29
Interim provisions on trade-related matters
1. The provisions of this Article shall apply to trade in energy
materials and products while any Contracting Party is not a party to
the GATT and Related Instruments.
2. (a) Trade in energy materials and products between Contracting
Parties at least one of which is not a party to the GATT or a
relevant Related Instrument shall be governed, subject to
subparagraphs (b) and (c) and to the exceptions and rules provided
for in Annex G, by the provisions of GATT 1947 and Related
Instruments, as applied on 1 March 1994 and practised with regard to
energy materials and products by parties to GATT 1947 among
themselves, as if all Contracting Parties were parties to GATT 1947
and Related Instruments.
(b) Such trade of a Contracting Party which is a State that was a
constituent part of the former Union of Soviet Socialist Republics
may instead be governed, subject to the provisions of Annex TFU, by
an agreement between two or more such States, until 1 December 1999
or the admission of that Contracting Party to the GATT, whichever is
the earlier.
(c) As concerns trade between any two parties to the GATT,
subparagraph (a) shall not apply if either of those parties is not a
party to GATT 1947.
3. Each signatory to this Treaty, and each State or Regional
Economic Integration Organization acceding to this Treaty, shall on
the date of its signature or of its deposit of its instrument of
accession provide to the Secretariat a list of all tariff rates and
other charges levied on energy materials and products at the time of
importation or exportation, notifying the level of such rates and
charges applied on such date of signature or deposit. Any changes to
such rates or other charges shall be notified to the Secretariat,
which shall inform the Contracting Parties of such changes.
4. Each Contracting Party shall endeavour not to increase any tariff
rate or other charge levied at the time of importation or
exportation:
(a) in the case of the importation of energy materials and products
described in Part I of the schedule relating to the Contracting
Party referred to in Article II of the GATT, above the level set
forth in that schedule, if the Contracting Party is a party to the
GATT;
(b) in the case of the exportation of energy materials and products,
and that of their importation if the Contracting Party is not a
party to the GATT, above the level most recently notified to the
Secretariat, except as permitted by the provisions made applicable
by subparagraph 2 (a).
5. A Contracting Party may increase such tariff rate or other charge
above the level referred to in paragraph 4 only if:
(a) in the case of a rate or other charge levied at the time of
importation, such action is not inconsistent with the applicable
provisions of the GATT other than those provisions of GATT 1947 and
Related Instruments listed in Annex G and the corresponding
provisions of GATT 1994 and Related Instruments; or
(b) it has, to the fullest extent practicable under its legislative
procedures, notified the Secretariat of its proposal for such an
increase, given other interested Contracting Parties reasonable
opportunity for consultation with respect to its proposal, and
accorded consideration to any representations from such Contracting
Parties.
6. Signatories undertake to commence negotiations not later than 1
January 1995 with a view to concluding by 1 January 1998, as
appropriate in the light of any developments in the world trading
system, a text of an amendment to this Treaty which shall, subject
to conditions to be laid down therein, commit each Contracting Party
not to increase such tariffs or charges beyond the level prescribed
under that amendment.
7. Annex D shall apply to disputes regarding compliance with
provisions applicable to trade pursuant to this Article and, unless
both Contracting Parties agree otherwise, to disputes regarding
compliance with Article 5 between Contracting Parties at least one
of which is not a party to the GATT, except that Annex D shall not
apply to any dispute between Contracting Parties, the substance of
which arises under an agreement that:
(a) has been notified in accordance with and meets the other
requirements of subparagraph 2 (b) and Annex TFU; or
(b) establishes a free-trade area or a customs union as described in
Article XXIV of the GATT.
Article 30
Developments in international trading arrangements
Contracting Parties undertake that in the light of the results of
the Uruguay Round of Multilateral Trade Negotiations embodied
principally in the Final Act thereof done at Marrakesh, 15 April
1994, they will commence consideration not later than 1 July 1995 or
the entry into force of this Treaty, whichever is the later, of
appropriate amendments to this Treaty with a view to the adoption of
any such amendments by the Charter Conference.
Article 31
Energy-related equipment
The provisional Charter Conference shall at its first meeting
commence examination of the inclusion of energy-related equipment in
the trade provisions of this Treaty.
Article 32
Transitional arrangements
1. In recognition of the need for time to adapt to the requirements
of a market economy, a Contracting Party listed in Annex T may
temporarily suspend full compliance with its obligations under one
or more of the following provisions of this Treaty, subject to the
conditions in paragraphs 3 to 6:
Article 6 (2) and (5)
Article 7 (4)
Article 9 (1)
Article 10 (7) - specific measures
Article 14 (1) (d) - related only to transfer of unspent earnings
Article 20 (3)
Article 22 (1) and (3)
2. Other Contracting Parties shall assist any Contracting Party
which has suspended full compliance pursuant to paragraph 1 to
achieve the conditions under which such suspension can be
terminated. This assistance may be given in whatever form the other
Contracting Parties consider most effective to respond to the needs
notified pursuant to subparagraph 4 (c) including, where
appropriate, through bilateral or multilateral arrangements.
3. The applicable provisions, the stages towards full implementation
of each, the measures to be taken and the date or, exceptionally,
contingent event, by which each stage shall be completed and measure
taken are listed in Annex T for each Contracting Party claiming
transitional arrangements. Each such Contracting Party shall take
the measure listed by the date indicated for the relevant provision
and stage as set out in Annex T. Contracting Parties which have
temporarily suspended full compliance pursuant to paragraph 1
undertake to comply fully with the relevant obligations by 1 July
2001. Should a Contracting Party find it necessary, due to
exceptional circumstances, to request that the period of such
temporary suspension be extended or that any further temporary
suspension not previously listed in Annex T be introduced, the
decision on a request to amend Annex T shall be made by the Charter
Conference.
4. A Contracting Party which has invoked transitional arrangements
shall notify the Secretariat no less often than once every 12
months:
(a) of the implementation of any measures listed in its Annex T and
of its general progress to full compliance;
(b) of the progress it expects to make during the next 12 months
towards full compliance with its obligations, of any problem it
foresees and of its proposals for dealing with that problem;
(c) of the need for technical assistance to facilitate completion of
the stages set out in Annex T as necessary for the full
implementation of this Treaty, or to deal with any problem notified
pursuant to subparagraph (b) as well as to promote other necessary
market-oriented reforms and modernization of its energy sector;
(d) of any possible need to make a request of the kind referred to
in paragraph 3.
5. The Secretariat shall:
(a) circulate to all Contracting Parties the notifications referred
to in paragraph 4;
(b) circulate and actively promote, relying where appropriate on
arrangements existing within other international organizations, the
matching of needs for and offers of technical assistance referred to
in paragraph 2 and subparagraph 4 (c);
(c) circulate to all Contracting Parties at the end of each
six-month period a summary of any notifications made pursuant to
subparagraph 4 (a) or (d).
6. The Charter Conference shall annually review the progress by
Contracting Parties towards implementation of the provisions of this
Article and the matching of needs and offers of technical assistance
referred to in paragraph 2 and subparagraph 4 (c). In the course of
that review it may decide to take appropriate action.
PART VII STRUCTURE AND INSTITUTIONS
Article 33
Energy Charter Protocols and Declarations
1. The Charter Conference may authorize the negotiation of a number
of Energy Charter Protocols or Declarations in order to pursue the
objectives and principles of the Charter.
3. A State or Regional Economic Integration Organization shall not
become a party to a Protocol or Declaration unless it is, or becomes
at the same time, a signatory to the Charter and a Contracting Party
to this Treaty.
4. Subject to paragraph 3 and subparagraph 6 (a), final provisions
applying to a Protocol shall be defined in that Protocol.
5. A Protocol shall apply only to the Contracting Parties which
consent to be bound by it, and shall not derogate from the rights
and obligations of those Contracting Parties not party to the
Protocol.
6. (a) A Protocol may assign duties to the Charter Conference and
functions to the Secretariat, provided that no such assignment may
be made by an amendment to a Protocol unless that amendment is
approved by the Charter Conference, whose approval shall not be
subject to any provisions of the Protocol which are authorized by
subparagraph (b).
(b) A Protocol which provides for decisions thereunder to be taken
by the Charter Conference may, subject to subparagraph (a), provide
with respect to such decisions:
(i) for voting rules other than those contained in Article 36;
(ii) that only parties to the Protocol shall be considered to be
Contracting Parties for the purposes of Article 36 or eligible to
vote under the rules provided for in the Protocol.
Article 34
Energy Charter Conference
1. The Contracting Parties shall meet periodically in the Energy
Charter Conference (referred to herein as the 'Charter Conference`)
at which each Contracting Party shall be entitled to have one
representative. Ordinary meetings shall be held at intervals
determined by the Charter Conference.
2. Extraordinary meetings of the Charter Conference may be held at
such times as may be determined by the Charter Conference, or at the
written request of any Contracting Party, provided that, within six
weeks of the request being communicated to the Contracting Parties
by the Secretariat, it is supported by at least one-third of the
Contracting Parties.
3. The functions of the Charter Conference shall be to:
(a) carry out the duties assigned to it by this Treaty and any
Protocols;
(b) keep under review and facilitate the implementation of the
principles of the Charter and of the provisions of this Treaty and
the Protocols;
(c) facilitate in accordance with this Treaty and the Protocols the
coordination of appropriate general measures to carry out the
principles of the Charter;
(d) consider and adopt programmes of work to be carried out by the
Secretariat;
(e) consider and approve the annual accounts and budget of the
Secretariat;
(f) consider and approve or adopt the terms of any headquarters or
other agreement, including privileges and immunities considered
necessary for the Charter Conference and the Secretariat;
(g) encourage cooperative efforts aimed at facilitating and
promoting market-oriented reforms and modernization of energy
sectors in those countries of central and eastern Europe and the
former Union of Soviet Socialist Republics undergoing economic
transition;
(h) authorize and approve the terms of reference for the negotiation
of Protocols, and consider and adopt the texts thereof and of
amendments thereto;
(i) authorize the negotiation of declarations, and approve their
issuance;
(j) decide on accessions to this Treaty;
(k) authorize the negotiation of and consider and approve or adopt
association agreements;
(l) consider and adopt texts of amendments to this Treaty;
(m) consider and approve modifications of and technical changes to
the Annexes to this Treaty;
(n) appoint the Secretary-General and take all decisions necessary
for the establishment and functioning of the Secretariat including
the structure, staff levels and standard terms of employment of
officials and employees.
4. In the performance of its duties, the Charter Conference, through
the Secretariat, shall cooperate with and make as full a use as
possible, consistently with economy and efficiency, of the services
and programmes of other institutions and organizations with
established competence in matters related to the objectives of this
Treaty.
5. The Charter Conference may establish such subsidiary bodies as it
considers appropriate for the performance of its duties.
7. In 1999 and thereafter at intervals (of not more than five years)
to be determined by the Charter Conference, the Charter Conference
shall thoroughly review the functions provided for in this Treaty in
the light of the extent to which the provisions of the Treaty and
Protocols have been implemented. At the conclusion of each review
the Charter Conference may amend or abolish the functions specified
in paragraph 3 and may discharge the Secretariat.
Article 35
Secretariat
1. In carrying out its duties, the Charter Conference shall have a
Secretariat which shall be composed of a Secretary-General and such
staff as are the minimum consistent with efficient performance.
2. The Secretary-General shall be appointed by the Charter
Conference. The first such appointment shall be for a maximum period
of five years.
3. In the performance of its duties the Secretariat shall be
responsible to and report to the Charter Conference.
4. The Secretariat shall provide the Charter Conference with all
necessary assistance for the performance of its duties and shall
carry out the functions assigned to it in this Treaty or in any
Protocol and any other functions assigned to it by the Charter
Conference.
5. The Secretariat may enter into such administrative and
contractual arrangements as may be required for the effective
discharge of its functions.
Article 36
Voting
1. Unanimity of the Contracting Parties present and voting at the
meeting of the Charter Conference where such matters fall to be
decided shall be required for decisions by the Charter Conference
to:
(a) adopt amendments to this Treaty other than amendments to
Articles 34 and 35 and Annex T;
(b) approve accessions to this Treaty pursuant to Article 41 by
States or Regional Economic Integration Organizations which were not
signatories to the Charter as of 16 June 1995;
(c) authorize the negotiation of and approve or adopt the text of
association agreements;
(d) approve modifications to Annexes EM, NI, G and B;
(e) approve technical changes to the Annexes to this Treaty; and
(f) approve the Secretary-General's nominations of panelists
pursuant to Annex D, paragraph 7.
The Contracting Parties shall make every effort to reach agreement
by consensus on any other matter requiring their decision pursuant
to this Treaty. If agreement cannot be reached by consensus,
paragraphs 2 to 5 shall apply.
2. Decisions on budgetary matters referred to in Article 34 (3) (e)
shall be taken by a qualified majority of Contracting Parties whose
assessed contributions as specified in Annex B represent, in
combination, at least three-fourths of the total assessed
contributions specified therein.
3. Decisions on matters referred to in Article 34 (7) shall be taken
by a three-fourths majority of the Contracting Parties.
4. Except in cases specified in subparagraphs 1 (a) to (f),
paragraphs 2 and 3, and subject to paragraph 6, decisions provided
for in this Treaty shall be taken by a three-fourths majority of the
Contracting Parties present and voting at the meeting of the Charter
Conference at which such matters fall to be decided.
5. For purposes of this Article, 'Contracting Parties present and
voting` means Contracting Parties present and casting affirmative or
negative votes, provided that the Charter Conference may decide upon
rules of procedure to enable such decisions to be taken by
Contracting Parties by correspondence.
6. Except as provided in paragraph 2, no decision referred to in
this Article shall be valid unless it has the support of a simple
majority of the Contracting Parties.
7. A Regional Economic Integration Organization shall, when voting,
have a number of votes equal to the number of its Member States
which are Contracting Parties to this Treaty; provided that such an
Organization shall not exercise its right to vote if its Member
States exercise theirs, and vice versa.
8. In the event of persistent arrears in a Contracting Party's
discharge of financial obligations pursuant to this Treaty, the
Charter Conference may suspend that Contracting Party's voting
rights in whole or in part.
Article 37
Funding principles
1. Each Contracting Party shall bear its own costs of representation
at meetings of the Charter Conference and any subsidiary bodies.
2. The cost of meetings of the Charter Conference and any subsidiary
bodies shall be regarded as a cost of the Secretariat.
3. The costs of the Secretariat shall be met by the Contracting
Parties assessed according to their capacity to pay, determined as
specified in Annex B, the provisions of which may be modified in
accordance with Article 36 (1) (d).
4. A Protocol shall contain provisions to assure that any costs of
the Secretariat arising from that Protocol are borne by the parties
thereto.
5. The Charter Conference may in addition accept voluntary
contributions from one or more Contracting Parties or from other
sources. Costs met from such contributions shall not be considered
costs of the Secretariat for the purposes of paragraph 3.
PART VIII FINAL PROVISIONS
Article 38
Signature
This Treaty shall be open for signature at Lisbon from 17 December
1994 to 16 June 1995 by the States and Regional Economic Integration
Organizations which have signed the Charter.
Article 39
Ratification, acceptance or approval
This Treaty shall be subject to ratification, acceptance or approval
by signatories. Instruments of ratification, acceptance or approval
shall be deposited with the Depositary.
Article 40
Application to territories
1. Any State or Regional Economic Integration Organization may at
the time of signature, ratification, acceptance, approval or
accession, by a declaration deposited with the Depositary, declare
that the Treaty shall be binding upon it with respect to all the
territories for the international relations of which it is
responsible, or to one or more of them. Such declaration shall take
effect at the time the Treaty enters into force for that Contracting
Party.
2. Any Contracting Party may at a later date, by a declaration
deposited with the Depositary, bind itself under this Treaty with
respect to other territory specified in the declaration. In respect
of such territory the Treaty shall enter into force on the 90th day
following the receipt by the Depositary of such declaration.
3. Any declaration made under the two preceding paragraphs may, in
respect of any territory specified in such declaration, be withdrawn
by a notification to the Depositary. The withdrawal shall, subject
to the applicability of Article 47 (3), become effective upon the
expiry of one year after the date of receipt of such notification by
the Depositary.
4. The definition of 'area` in Article 1 (10) shall be construed
having regard to any declaration deposited pursuant to this Article.
Article 41
Accession
This Treaty shall be open for accession, from the date on which the
Treaty is closed for signature, by States and Regional Economic
Integration Organizations which have signed the Charter, on terms to
be approved by the Charter Conference. The instruments of accession
shall be deposited with the Depositary.
Article 42
Amendments
2. The text of any proposed amendment to this Treaty shall be
communicated to the Contracting Parties by the Secretariat at least
three months before the date on which it is proposed for adoption by
the Charter Conference.
3. Amendments to this Treaty, texts of which have been adopted by
the Charter Conference, shall be communicated by the Secretariat to
the Depositary which shall submit them to all Contracting Parties
for ratification, acceptance or approval.
4. Instruments of ratification, acceptance or approval of amendments
to this Treaty shall be deposited with the Depositary. Amendments
shall enter into force between Contracting Parties having ratified,
accepted or approved them on the 90th day after deposit with the
Depositary of instruments of ratification, acceptance or approval by
at least three-fourths of the Contracting Parties. Thereafter the
amendments shall enter into force for any other Contracting Party on
the 90th day after that Contracting Party deposits its instrument of
ratification, acceptance or approval of the amendments.
Article 43
Association agreements
1. The Charter Conference may authorize the negotiation of
association agreements with States or Regional Economic Integration
Organizations, or with international organizations, in order to
pursue the objectives and principles of the Charter and the
provisions of this Treaty or one or more Protocols.
2. The relationship established with and the rights enjoyed and
obligations incurred by an associating State, Regional Economic
Integration Organization, or international organization shall be
appropriate to the particular circumstances of the association, and
in each case shall be set out in the association agreement.
Article 44
Entry into force
1. This Treaty shall enter into force on the 90th day after the date
of deposit of the 30th instrument of ratification, acceptance or
approval thereof, or of accession thereto, by a State or Regional
Economic Integration Organization which is a signatory to the
Charter as of 16 June 1995.
2. For each State or Regional Economic Integration Organization
which ratifies, accepts or approves this Treaty or accedes thereto
after the deposit of the 30th instrument of ratification, acceptance
or approval, it shall enter into force on the 90th day after the
date of deposit by such State or Regional Economic Integration
Organization of its instrument of ratification, acceptance, approval
or accession.
3. For the purposes of paragraph 1, any instrument deposited by a
Regional Economic Integration Organization shall not be counted as
additional to those deposited by Member States of such Organization.
Article 45
Provisional application
1. Each signatory agrees to apply this Treaty provisionally pending
its entry into force for such signatory in accordance with Article
44, to the extent that such provisional application is not
inconsistent with its constitution, laws or regulations.
2. (a) Notwithstanding paragraph 1 any signatory may, when signing,
deliver to the Depositary a declaration that it is not able to
accept provisional application. The obligation contained in
paragraph 1 shall not apply to a signatory making such a
declaration. Any such signatory may at any time withdraw that
declaration by written notification to the Depositary.
(b) Neither a signatory which makes a declaration in accordance with
subparagraph (a) nor investors of that signatory may claim the
benefits of provisional application pursuant to paragraph 1.
(c) Notwithstanding subparagraph (a), any signatory making a
declaration referred to in subparagraph (a) shall apply Part VII
provisionally pending the entry into force of the Treaty for such
signatory in accordance with Article 44, to the extent that such
provisional application is not inconsistent with its laws or
regulations.
3. (a) Any signatory may terminate its provisional application of
this Treaty by written notification to the Depositary of its
intention not to become a Contracting Party to the Treaty.
Termination of provisional application for any signatory shall take
effect upon the expiration of 60 days from the date on which such
signatory's written notification is received by the Depositary.
(b) In the event that a signatory terminates provisional application
pursuant to subparagraph (a), the obligation of the signatory
pursuant to paragraph 1 to apply Parts III and V with respect to any
investments made in its area during such provisional application by
investors of other signatories shall nevertheless remain in effect
with respect to those investments for 20 years following the
effective date of termination, except as otherwise provided in
subparagraph (c).
(c) Subparagraph (b) shall not apply to any signatory listed in
Annex PA. A signatory shall be removed from the list in Annex PA
effective upon delivery to the Depositary of its request therefor.
4. Pending the entry into force of this Treaty the signatories shall
meet periodically in the provisional Charter Conference, the first
meeting of which shall be convened by the provisional Secretariat
referred to in paragraph 5 not later than 180 days after the opening
date for signature of the Treaty as specified in Article 38.
5. The functions of the Secretariat shall be carried out on an
interim basis by a provisional Secretariat until the entry into
force of this Treaty pursuant to Article 44 and the establishment of
a Secretariat.
6. The signatories shall, in accordance with and subject to the
provisions of paragraph 1 or subparagraph 2 (c) as appropriate,
contribute to the costs of the provisional Secretariat as if the
signatories were Contracting Parties pursuant to Article 37 (3). Any
modifications made to Annex B by the signatories shall terminate
upon the entry into force of this Treaty.
7. A State or Regional Economic Integration Organization which,
prior to this Treaty's entry into force, accedes to the Treaty in
accordance with Article 41 shall, pending the Treaty's entry into
force, have the rights and assume the obligations of a signatory
pursuant to this Article.
Article 46
Reservations
No reservations may be made to this Treaty.
Article 47
Withdrawal
1. At any time after five years from the date on which this Treaty
has entered into force for a Contracting Party, that Contracting
Party may give written notification to the Depositary of its
withdrawal from the Treaty.
2. Any such withdrawal shall take effect upon the expiry of one year
after the date of the receipt of the notification by the Depositary,
or on such later date as may be specified in the notification of
withdrawal.
3. The provisions of this Treaty shall continue to apply to
investments made in the area of a Contracting Party by investors of
other Contracting Parties or in the area of other Contracting
Parties by investors of that Contracting Party as of the date when
that Contracting Party's withdrawal from the Treaty takes effect for
a period of 20 years from such date.
4. All Protocols to which a Contracting Party is party shall cease
to be in force for that Contracting Party on the effective date of
its withdrawal from this Treaty.
Article 48
Status of Annexes and Decisions
The Annexes to this Treaty and the Decisions set out in Annex 2 to
the Final Act of the European Energy Charter Conference signed at
Lisbon on 17 December 1994 are integral parts of the Treaty.
Article 49
Depositary
The Government of the Portuguese Republic shall be the Depositary of
this Treaty.
Article 50
Authentic texts
In witness whereof the undersigned, being duly authorized to that
effect, have signed this Treaty in English, French, German, Italian,
Russian and Spanish, of which every text is equally authentic, in
one original, which will be deposited with the Government of the
Portuguese Republic.
Done at Lisbon on the seventeenth day of December in the year one
thousand nine hundred and ninety-four.
Fait š Lisbonne, le dix-sept dłcembre mil neuf cent
quatre-vingt-quatorze.
Geschehen zu Lissabon am siebzehnten Dezember
neunzehnhundertvierundneunzig.
Fatto a Lisbona il diciassettesimo giorno del mese di dicembre
dell'anno millenovecentonovantaquattro.
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Hecho en Lisboa, el diecisiete de diciembre de mil novecientos
noventa y cuatro.
Udfördiget i Lissabon, den syttende december nittenhundrede og
fireoghalvfems.
øółżõ ėĮ÷ ĖłėńņŽżń, ėĮłĖ ōąśń õĘĮĄ Äõśõüņęč˙į Į˙į ąĮ˙įĖ ščūłń
õżłńśŽėłń õżõżČżĮń Įąėėõęń.
Gedaan te Lissabon, de zeventiende december negentienhonderd
vierennegentig.
Feito em Lisboa, aos dezassete de Dezembro de mil novecentos e
noventa e quatro.
Pūr Republikūn e Shqipūrisū
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For Australia
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FŽr die Republik Österreich
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Pour le royaume de Belgique
Voor het Koninkrijk Belgiū
FŽr das KŠnigreich Belgien
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Cette signature engage łgalement la Communautł fran÷aise de
Belgique, la Communautł flamande, la Communautł germanophone de
Belgique, la Rłgion wallonne, la Rłgion flamande et la rłgion de
Bruxelles-Capitale.
Deze handtekening bindt eveneens de Vlaamse Gemeenschap, de Franse
Gemeenschap van Belgiū, de Duitstalige Gemeenschap van Belgiū, het
Waals Gewest en het Brussels Hoofdstedelijk Gewest.
Diese Unterschrift bindet ebenso die Flōmische Gemeinschaft, die
FranzŠsische Gemeinschaft Belgiens, die Deutschsprachige
Gemeinschaft Belgiens, die Flōmische Region, die Wallonische Region
und die Region BrŽssel-Hauptstadt.
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For Canada
Pour le Canada
za Republiku Hrvatsku
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For the Republic of Cyprus
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Za OCeskou Republiku
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For Kongeriget Danmark
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Eesti Vabariigi nimel
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Por las Comunidades Europeas
For De Europöiske Föllesskaber
FŽr die Europōischen Gemeinschaften
Ćłń ĮłĖ ÅįęųĘńŪśąĖ Ź˙łżŽĮ÷ĮõĖ
For the European Communities
Pour les Communautłs europłennes
Per le Comunitš europee
Voor de Europese Gemeenschappen
Pelas Comunidades Europeias
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Suomen tasavallan puolesta
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Pour la Rłpublique fran÷aise>REFERENCE TO A FILM>
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FŽr die Bundesrepublik Deutschland
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Ćłń Į÷ż Åūū÷żłśČ Ä÷ü˙śęńĮčń
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A Magyar KŠztńrsasńg nevłben
Fyrir hŠnd Ly sveldisins żslands
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Thar cheann na hÉireann
For Ireland
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Per la Repubblica italiana
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Latvijas Republikas varda
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FŽr das FŽrstentum Liechtenstein
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Lietuvos Respublikos vardu
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Pour le grand-duchł de Luxembourg
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For the Republic of Malta
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Pentru Republica Moldova
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Voor het Koninkrijk der Nederlanden
>REFERENCE TO A FILM>
For Kongeriket Norge
>REFERENCE TO A FILM>
Za Rzeczpospolit Na Polsk Na
>REFERENCE TO A FILM>
Pela RepŪblica Portuguesa
>REFERENCE TO A FILM>
Pentru RĮmania
>REFERENCE TO A FILM>
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Za SlovenskŪ republiku
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Za Republiko Slovenijo
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Por el Reino de Espaęa
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FŠr Konungariket Sverige
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FŽr die Schweizerische Eidgenossenschaft
Pour la Confłdłration suisse
Per la Confederazione svizzera
>REFERENCE TO A FILM>
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TŽrkiye Cumhuriyeti adina
>REFERENCE TO A FILM>
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For the United Kingdom of Great Britain and Northern Ireland
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For the United States of America
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ANNEXES TO THE ENERGY CHARTER TREATY TABLE OF CONTENTS
Page
2. Annex NI
Non-applicable energy materials and products for definition of
'economic activity in the energy sector`
(In accordance with Article 1 (5))
66
4. Annex N
List of Contracting Parties requiring at least three separate areas
to be involved in a transit
(In accordance with Article 7 (10) (a))
67
5. Annex VC
List of Contracting Parties which have made voluntary binding
commitments in respect of Article 10 (3)
(In accordance with Article 10 (6))
67
6. Annex ID
List of Contracting Parties not allowing an investor to resubmit the
same dispute to international arbitration at a later stage pursuant
to Article 26
(In accordance with Article 26 (3) (b) (i))
68
7. Annex IA
List of Contracting Parties not allowing an investor or Contracting
Party to submit a dispute concerning the last sentence of Article 10
(1) to international arbitration
(In accordance with Articles 26 (3) (c) and 27 (2))
68
9. Annex G
Exceptions and rules governing the application of the provisions of
the GATT and Related Instruments
(In accordance with Article 29 (2) (a))
70
10. Annex TFU
Provisions regarding trade agreements between States which were
constituent parts of the Former Union of Soviet Socialist Republics
(In accordance with Article 29 (2) (b))
73
11. Annex D
Interim provisions for trade dispute settlement
(In accordance with Article 29 (7))
74
Page
13. Annex PA
List of signatories which do not accept the provisional application
obligation of Article 45 (3) (b) (In accordance with Article 45 (3)
(c))
78
2. Annex NI
NON-APPLICABLE ENERGY MATERIALS AND PRODUCTS FOR DEFINITION OF
'ECONOMIC ACTIVITY IN THE ENERGY SECTOR` (In accordance with Article
1 (5))
>TABLE POSITION>
1. Each Contracting Party shall notify to the Secretariat all
trade-related investment measures which it applies that are not in
conformity with the provisions of Article 5, within:
(a) 90 days after the entry into force of this Treaty if the
Contracting Party is a party to the GATT; or
(b) 12 months after the entry into force of this Treaty if the
Contracting Party is not a party to the GATT.
Such trade-related investment measures of general or specific
application shall be notified along with their principal features.
2. In the case of trade-related investment measures applied under
discretionary authority, each specific application shall be
notified. Information that would prejudice the legitimate commercial
interests of particular enterprises need not be disclosed.
3. Each Contracting Party shall eliminate all trade-related
investment measures which are notified under paragraph 1 within:
(a) two years from the date of entry into force of this Treaty if
the Contracting Party is a party to the GATT; or
(b) three years from the date of entry into force of this Treaty if
the Contracting Party is not a party to the GATT.
4. During the applicable period referred to in paragraph 3 a
Contracting Party shall not modify the terms of any trade-related
investment measure which it notifies pursuant to paragraph 1 from
those prevailing at the date of entry into force of this Treaty so
as to increase the degree of inconsistency with the provisions of
Article 5 of this Treaty.
5. Notwithstanding the provisions of paragraph 4, a Contracting
Party, in order not to disadvantage established enterprises which
are subject to a trade-related investment measure notified pursuant
to paragraph 1, may apply during the phase-out period the same
trade-related investment measure to a new investment where:
(a) the products of such investment are like products to those of
the established enterprises; and
(b) such application is necessary to avoid distorting the conditions
of competition between the new investment and the established
enterprises.
Any trade-related investment measure so applied to a new investment
shall be notified to the Secretariat. The terms of such a
trade-related investment measure shall be equivalent in their
competitive effect to those applicable to the established
enterprises, and it shall be terminated at the same time.
6. Where a State or Regional Economic Integration Organization
accedes to this Treaty after the Treaty has entered into force:
(a) the notification referred to in paragraphs 1 and 2 shall be made
by the later of the applicable date in paragraph 1 or the date of
deposit of the instrument of accession; and
(b) the end of the phase-out period shall be the later of the
applicable date in paragraph 3 or the date on which the Treaty
enters into force for that State or Regional Economic Integration
Organization.
4. Annex N
LIST OF CONTRACTING PARTIES REQUIRING AT LEAST THREE SEPARATE AREAS
TO BE INVOLVED IN A TRANSIT (In accordance with Article 7 (10) (a))
5. Annex VC
LIST OF CONTRACTING PARTIES WHICH HAVE MADE VOLUNTARY BINDING
COMMITMENTS IN RESPECT OF ARTICLE 10 (3) (In accordance with Article
10 (6))
6. Annex ID
LIST OF CONTRACTING PARTIES NOT ALLOWING AN INVESTOR TO RESUBMIT THE
SAME DISPUTE TO INTERNATIONAL ARBITRATION AT A LATER STAGE PURSUANT
TO ARTICLE 26 (In accordance with Article 26 (3) (b) (i))
7. Annex IA
LIST OF CONTRACTING PARTIES NOT ALLOWING AN INVESTOR OR CONTRACTING
PARTY TO SUBMIT A DISPUTE CONCERNING THE LAST SENTENCE OF ARTICLE 10
(1) TO INTERNATIONAL ARBITRATION (In accordance with Articles 26 (3)
(c) and 27 (2))
1. Where, in making an award, the tribunal finds that a measure of a
regional or local government or authority of a Contracting Party
(hereinafter referred to as the 'Responsible Party`) is not in
conformity with a provision of this Treaty, the Responsible Party
shall take such reasonable measures as may be available to it to
ensure observance of the Treaty in respect of the measure.
2. The Responsible Party shall, within 30 days from the date the
award is made, provide to the Secretariat written notice of its
intentions as to ensuring observance of the Treaty in respect of the
measure. The Secretariat shall present the notification to the
Charter Conference at the earliest practicable opportunity, and no
later than the meeting of the Charter Conference following receipt
of the notice. If it is impracticable to ensure observance
immediately, the Responsible Party shall have a reasonable period of
time in which to do so. The reasonable period of time shall be
agreed by both parties to the dispute. In the event that such
agreement is not reached, the Responsible Party shall propose a
reasonable period for approval by the Charter Conference.
3. Where the Responsible Party fails, within the reasonable period
of time, to ensure observance in respect of the measure, it shall at
the request of the other Contracting Party party to the dispute
(hereinafter referred to as the 'Injured Party`) endeavour to agree
with the Injured Party on appropriate compensation as a mutually
satisfactory resolution of the dispute.
4. If no satisfactory compensation has been agreed within 20 days of
the request of the Injured Party, the Injured Party may with the
authorization of the Charter Conference suspend such of its
obligations to the Responsible Party under the Treaty as it
considers equivalent to those denied by the measure in question,
until such time as the Contracting Parties have reached agreement on
a resolution of their dispute or the non-conforming measure has been
brought into conformity with the Treaty.
5. In considering what obligations to suspend, the Injured Party
shall apply the following principles and procedures:
(a) The Injured Party should first seek to suspend obligations with
respect to the same part of the Treaty as that in which the tribunal
has found a violation.
(b) If the Injured Party considers that it is not practicable or
effective to suspend obligations with respect to the same part of
the Treaty, it may seek to suspend obligations in other parts of the
Treaty. If the Injured Party decides to request authorization to
suspend obligations under this subparagraph, it shall state the
reasons therefor in its request to the Charter Conference for
authorization.
6. On written request of the Responsible Party, delivered to the
Injured Party and to the President of the tribunal that rendered the
award, the tribunal shall determine whether the level of obligations
suspended by the Injured Party is excessive, and if so, to what
extent. If the tribunal cannot be reconstituted, such determination
shall be made by one or more arbitrators appointed by the
Secretary-General. Determinations pursuant to this paragraph shall
be completed within 60 days of the request to the tribunal or the
appointment by the Secretary-General. Obligations shall not be
suspended pending the determination, which shall be final and
binding.
7. In suspending any obligations to a Responsible Party, an Injured
Party shall make every effort not to affect adversely the rights
under the Treaty of any other Contracting Party.
9. Annex G
EXCEPTIONS AND RULES GOVERNING THE APPLICATION OF THE PROVISIONS OF
THE GATT AND RELATED INSTRUMENTS (In accordance with Article 29 (2)
(a))
1. The following provisions of GATT 1947 and Related Instruments
shall not be applicable under Article 29 (2) (a):
(a) General Agreement on Tariffs and Trade
>TABLE POSITION>
Safeguard action for development purposes
Understanding regarding notification, consultation, dispute
settlement and surveillance.
(b) Related Instruments
(i) Agreement on Technical Barriers to Trade (Standards Code)
Preamble (paragraphs 1, 8, 9)
>TABLE POSITION>
(ii) Agreement on Government Procurement
(iii) Agreement on Interpretation and Application of Articles VI,
XVI and XXIII (Subsidies and Countervailing Measures)
>TABLE POSITION>
(iv) Agreement on Implementation of Article VII (Customs Valuation)
>TABLE POSITION>
Protocol to the Agreement on Implementation of Article VII (except
I.7 and I.8; with necessary conforming introductory language)
(v) Agreement on Import Licensing Procedures
>TABLE POSITION>
(vi) Agreement on Implementation of Article VI (Antidumping Code)
>TABLE POSITION>
(vii) Arrangement regarding bovine meat
(viii) International dairy arrangement
(ix) Agreement on Trade in Civil Aircraft
(x) Declaration on trade measures taken for balance-of-payments
purposes.
(c) All other provisions in the GATT or Related Instruments which
relate to:
(i) governmental assistance to economic development and the
treatment of developing countries, except for paragraphs 1 to 4 of
the Decision of 28 November 1979 (L/4903) on differential and more
favourable treatment, reciprocity and fuller participation of
developing countries;
(ii) the establishment or operation of specialist committees and
other subsidiary institutions;
(iii) signature, accession, entry into force, withdrawal, deposit
and registration.
(d) All agreements, arrangements, decisions, understandings or other
joint action pursuant to the provisions listed in subparagraphs (a)
to (c).
2. Contracting Parties shall apply the provisions of the
'Declaration on trade measures taken for balance-of-payments
purposes` to measures taken by those Contracting Parties which are
not parties to the GATT, to the extent practicable in the context of
the other provisions of this Treaty.
3. With respect to notifications required by the provisions made
applicable by Article 29 (2) (a):
(a) Contracting Parties which are not parties to the GATT or a
Related Instrument shall make their notifications to the
Secretariat. The Secretariat shall circulate copies of the
notifications to all Contracting Parties. Notifications to the
Secretariat shall be in one of the authentic languages of this
Treaty. The accompanying documents may be solely in the language of
the Contracting Party;
(b) such requirements shall not apply to Contracting Parties to this
Treaty which are also parties to the GATT and Related Instruments,
which contain their own notification requirements.
4. Trade in nuclear materials may be governed by agreements referred
to in the declarations related to this paragraph contained in the
Final Act of the European Energy Charter Conference.
10. Annex TFU
PROVISIONS REGARDING TRADE AGREEMENTS BETWEEN STATES WHICH WERE
CONSTITUENT PARTS OF THE FORMER UNION OF SOVIET SOCIALIST REPUBLICS
(In accordance with Article 29 (2) (b))
1. Any agreement referred to in Article 29 (2) (b) shall be notified
in writing to the Secretariat by or on behalf of all of the parties
to such agreement which sign or accede to this Treaty:
(a) in respect of an agreement in force as of a date three months
after the date on which the first of such parties signs or deposits
its instrument of accession to the Treaty, no later than six months
after such date of signature or deposit; and
(b) in respect of an agreement which enters into force on a date
subsequent to the date referred to in subparagraph (a), sufficiently
in advance of its entry into force for other States or Regional
Economic Integration Organizations which have signed or acceded to
the Treaty (hereinafter referred to as the 'Interested Parties`) to
have a reasonable opportunity to review the agreement and make
representations concerning it to the parties thereto and to the
Charter Conference prior to such entry into force.
2. The notification shall include:
(a) copies of the original texts of the agreement in all languages
in which it has been signed;
(b) a description, by reference to the items included in Annex EM,
of the specific energy materials and products to which it applies;
(c) an explanation, separately for each relevant provision of the
GATT and Related Instruments made applicable by Article 29 (2) (a),
of the circumstances which make it impossible or impracticable for
the parties to the agreement to conform fully with that provision;
(d) the specific measures to be adopted by each party to the
agreement to address the circumstances referred to in subparagraph
(c); and
(e) a description of the parties' programmes for achieving a
progressive reduction and ultimate elimination of the agreement's
non-conforming provisions.
3. Parties to an agreement notified in accordance with paragraph 1
shall afford to the Interested Parties a reasonable opportunity to
consult with them with respect to such agreement, and shall accord
consideration to their representations. Upon the request of any of
the Interested Parties, the agreement shall be considered by the
Charter Conference, which may adopt recommendations with respect
thereto.
4. The Charter Conference shall periodically review the
implementation of agreements notified pursuant to paragraph 1 and
the progress having been made towards the elimination of provisions
thereof that do not conform with provisions of the GATT and Related
Instruments made applicable by Article 29 (2) (a). Upon the request
of any of the Interested Parties, the Charter Conference may adopt
recommendations with respect to such an agreement.
5. An agreement described in Article 29 (2) (b) may in case of
exceptional urgency be allowed to enter into force without the
notification and consultation provided for in subparagraph 1 (b),
paragraphs 2 and 3, provided that such notification takes place and
the opportunity for such consultation is afforded promptly. In such
a case the parties to the agreement shall nevertheless notify its
text in accordance with subparagraph 2 (a) promptly upon its entry
into force.
6. Contracting Parties which are or become parties to an agreement
described in Article 29 (2) (b) undertake to limit the
non-conformities thereof with the provisions of the GATT and Related
Instruments made applicable by Article 29 (2) (a) to those necessary
to address the particular circumstances and to implement such an
agreement so as least to deviate from those provisions. They shall
make every effort to take remedial action in light of
representations from the Interested Parties and of any
recommendations of the Charter Conference.
1. (a) In their relations with one another, Contracting Parties
shall make every effort through cooperation and consultations to
arrive at a mutually satisfactory resolution of any dispute about
existing measures that might materially affect compliance with the
provisions applicable to trade pursuant to Article 5 or 29.
(b) A Contracting Party may make a written request to any other
Contracting Party for consultations regarding any existing measure
of the other Contracting Party that it considers might affect
materially compliance with provisions applicable to trade pursuant
to Article 5 or 29. A Contracting Party which requests consultations
shall to the fullest extent possible indicate the measure complained
of and specify the provisions of Article 5 or 29 and of the GATT and
Related Instruments that it considers relevant. Requests to consult
pursuant to this paragraph shall be notified to the Secretariat,
which shall periodically inform the Contracting Parties of pending
consultations that have been notified.
(c) A Contracting Party shall treat any confidential or proprietary
information identified as such and contained in or received in
response to a written request, or received in the course of
consultations, in the same manner in which it is treated by the
Contracting Party providing the information.
(d) In seeking to resolve matters considered by a Contracting Party
to affect compliance with provisions applicable to trade pursuant to
Article 5 or 29 as between itself and another Contracting Party, the
Contracting Parties participating in consultations or other dispute
settlement shall make every effort to avoid a resolution that
adversely affects the trade of any other Contracting Party.
2. (a) If, within 60 days from the receipt of the request for
consultation referred to in subparagraph 1 (b), the Contracting
Parties have not resolved their dispute or agreed to resolve it by
conciliation, mediation, arbitration or other method, either
Contracting Party may deliver to the Secretariat a written request
for the establishment of a panel in accordance with subparagraphs
(b) to (f). In its request the requesting Contracting Party shall
state the substance of the dispute and indicate which provisions of
Article 5 or 29 and of the GATT and Related Instruments are
considered relevant. The Secretariat shall promptly deliver copies
of the request to all Contracting Parties.
(b) The interests of other Contracting Parties shall be taken into
account during the resolution of a dispute. Any other Contracting
Party having a substantial interest in a matter shall have the right
to be heard by the panel and to make written submissions to it,
provided that both the disputing Contracting Parties and the
Secretariat have received written notice of its interest no later
than the date of establishment of the panel, as determined in
accordance with subparagraph (c).
(c) A panel shall be deemed to be established 45 days after the
receipt of the written request of a Contracting Party by the
Secretariat pursuant to subparagraph (a).
(d) A panel shall be composed of three members who shall be chosen
by the Secretary-General from the roster described in paragraph 7.
Except where the disputing Contracting Parties agree otherwise, the
members of a panel shall not be citizens of Contracting Parties
which either are party to the dispute or have notified their
interest in accordance with subparagraph (b), or citizens of States
members of a Regional Economic Integration Organization which either
is party to the dispute or has notified its interest in accordance
with subparagraph (b).
(e) The disputing Contracting Parties shall respond within 10
working days to the nominations of panel members and shall not
oppose nominations except for compelling reasons.
(f) Panel members shall serve in their individual capacities and
shall neither seek nor take instruction from any government or other
body. Each Contracting Party undertakes to respect these principles
and not to seek to influence panel members in the performance of
their tasks. Panel members shall be selected with a view to ensuring
their independence, and that a sufficient diversity of backgrounds
and breadth of experience are reflected in a panel.
(g) The Secretariat shall promptly notify all Contracting Parties
that a panel has been constituted.
3. (a) The Charter Conference shall adopt rules of procedure for
panel proceedings consistent with this Annex. Rules of procedure
shall be as close as possible to those of the GATT and Related
Instruments. A panel shall also have the right to adopt additional
rules of procedure not inconsistent with the rules of procedure
adopted by the Charter Conference or with this Annex. In a
proceeding before a panel each disputing Contracting Party and any
other Contracting Party which has notified its interest in
accordance with subparagraph 2 (b), shall have the right to at least
one hearing before the panel and to provide a written submission.
Disputing Contracting Parties shall also have the right to provide a
written rebuttal. A panel may grant a request by any other
Contracting Party which has notified its interest in accordance with
subparagraph 2 (b) for access to any written submission made to the
panel, with the consent of the Contracting Party which has made it.
The proceedings of a panel shall be confidential. A panel shall make
an objective assessment of the matters before it, including the
facts of the dispute and the compliance of measures with the
provisions applicable to trade pursuant to Article 5 or 29. In
exercising its functions, a panel shall consult with the disputing
Contracting Parties and give them adequate opportunity to arrive at
a mutually satisfactory solution. Unless otherwise agreed by the
disputing Contracting Parties, a panel shall base its decision on
the arguments and submissions of the disputing Contracting Parties.
Panels shall be guided by the interpretations given to the GATT and
Related Instruments within the framework of the GATT, and shall not
question the compatibility with Article 5 or 29 of practices applied
by any Contracting Party which is a party to the GATT to other
parties to the GATT to which it applies the GATT and which have not
been taken by those other parties to dispute resolution under the
GATT.
Unless otherwise agreed by the disputing Contracting Parties, all
procedures involving a panel, including the issuance of its final
report, should be completed within 180 days of the date of
establishment of the panel; however, a failure to complete all
procedures within this period shall not affect the validity of a
final report.
(b) A panel shall determine its jurisdiction; such determination
shall be final and binding. Any objection by a disputing Contracting
Party that a dispute is not within the jurisdiction of the panel
shall be considered by the panel, which shall decide whether to deal
with the objection as a preliminary question or to join it to the
merits of the dispute.
(c) In the event of two or more requests for establishment of a
panel in relation to disputes that are substantively similar, the
Secretary-General may with the consent of all the disputing
Contracting Parties appoint a single panel.
4. (a) After having considered rebuttal arguments, a panel shall
submit to the disputing Contracting Parties the descriptive sections
of its draft written report, including a statement of the facts and
a summary of the arguments made by the disputing Contracting
Parties. The disputing Contracting Parties shall be afforded an
opportunity to submit written comments on the descriptive sections
within a period set by the panel.
Following the date set for receipt of comments from the Contracting
Parties, the panel shall issue to the disputing Contracting Parties
an interim written report, including both the descriptive sections
and the panel's proposed findings and conclusions. Within a period
set by the panel a disputing Contracting Party may submit to the
panel a written request that the panel review specific aspects of
the interim report before issuing a final report. Before issuing a
final report the panel may, in its discretion, meet with the
disputing Contracting Parties to consider the issues raised in such
a request.
The final report shall include descriptive sections (including a
statement of the facts and a summary of the arguments made by the
disputing Contracting Parties), the panel's findings and
conclusions, and a discussion of arguments made on specific aspects
of the interim report at the stage of its review. The final report
shall deal with every substantial issue raised before the panel and
necessary to the resolution of the dispute and shall state the
reasons for the panel's conclusions.
A panel shall issue its final report by providing it promptly to the
Secretariat and to the disputing Contracting Parties. The
Secretariat shall at the earliest practicable opportunity distribute
the final report, together with any written views that a disputing
Contracting Party desires to have appended, to all Contracting
Parties.
(b) Where a panel concludes that a measure introduced or maintained
by a Contracting Party does not comply with a provision of Article 5
or 29 or with a provision of the GATT or a Related Instrument that
applies pursuant to Article 29, the panel may recommend in its final
report that the Contracting Party alter or abandon the measure or
conduct so as to be in compliance with that provision.
(c) Panel reports shall be adopted by the Charter Conference. In
order to provide sufficient time for the Charter Conference to
consider panel reports, a report shall not be adopted by the Charter
Conference until at least 30 days after it has been provided to all
Contracting Parties by the Secretariat. Contracting Parties having
objections to a panel report shall give written reasons for their
objections to the Secretariat at least 10 days prior to the date on
which the report is to be considered for adoption by the Charter
Conference, and the Secretariat shall promptly provide them to all
Contracting Parties. The disputing Contracting Parties and
Contracting Parties which notified their interest in accordance with
subparagraph 2 (b) shall have the right to participate fully in the
consideration of the panel report on that dispute by the Charter
Conference, and their views shall be fully recorded.
(d) In order to ensure effective resolution of disputes to the
benefit of all Contracting Parties, prompt compliance with rulings
and recommendations of a final panel report that has been adopted by
the Charter Conference is essential. A Contracting Party which is
subject to a ruling or recommendation of a final panel report that
has been adopted by the Charter Conference shall inform the Charter
Conference of its intentions regarding compliance with such ruling
or recommendation. In the event that immediate compliance is
impracticable, the Contracting Party concerned shall explain its
reasons for non-compliance to the Charter Conference and, in light
of this explanation, shall have a reasonable period of time to
effect compliance. The aim of dispute resolution is the modification
or removal of inconsistent measures.
5. (a) Where a Contracting Party has failed within a reasonable
period of time to comply with a ruling or recommendation of a final
panel report that has been adopted by the Charter Conference, a
Contracting Party to the dispute injured by such non-compliance may
deliver to the non-complying Contracting Party a written request
that the non-complying Contracting Party enter into negotiations
with a view to agreeing upon mutually acceptable compensation. If so
requested the non-complying Contracting Party shall promptly enter
into such negotiations.
(b) If the non-complying Contracting Party refuses to negotiate, or
if the Contracting Parties have not reached agreement within 30 days
after delivery of the request for negotiations, the injured
Contracting Party may make a written request for authorization of
the Charter Conference to suspend obligations owed by it to the
non-complying Contracting Party pursuant to Article 5 or 29.
(c) The Charter Conference may authorize the injured Contracting
Party to suspend such of its obligations to the non-complying
Contracting Party, under provisions of Article 5 or 29 or under
provisions of the GATT or Related Instruments that apply pursuant to
Article 29, as the injured Contracting Party considers equivalent in
the circumstances.
(d) The suspension of obligations shall be temporary and shall be
applied only until such time as the measure found to be inconsistent
with Article 5 or 29 has been removed, or until a mutually
satisfactory solution is reached.
6. (a) Before suspending such obligations the injured Contracting
Party shall inform the non-complying Contracting Party of the nature
and level of its proposed suspension. If the non-complying
Contracting Party delivers to the Secretary-General a written
objection to the level of suspension of obligations proposed by the
injured Contracting Party, the objection shall be referred to
arbitration as provided below. The proposed suspension of
obligations shall be stayed until the arbitration has been completed
and the determination of the arbitral panel has become final and
binding in accordance with subparagraph (e).
(b) The Secretary-General shall establish an arbitral panel in
accordance with subparagraphs 2 (d) to (f), which if practicable
shall be the same panel which made the ruling or recommendation
referred to in subparagraph 4 (d), to examine the level of
obligations that the injured Contracting Party proposes to suspend.
Unless the Charter Conference decides otherwise the rules of
procedure for panel proceedings shall be adopted in accordance with
subparagraph 3 (a).
(c) The arbitral panel shall determine whether the level of
obligations proposed to be suspended by the injured Contracting
Party is excessive in relation to the injury it experienced, and if
so, to what extent. It shall not review the nature of the
obligations suspended, except in so far as this is inseparable from
the determination of the level of suspended obligations.
(d) The arbitral panel shall deliver its written determination to
the injured and the non-complying Contracting Parties and to the
Secretariat within 60 days of the establishment of the panel or
within such other period as may be agreed by the injured and the
non-complying Contracting Parties. The Secretariat shall present the
determination to the Charter Conference at the earliest practicable
opportunity, and no later than the meeting of the Charter Conference
following receipt of the determination.
(e) The determination of the arbitral panel shall become final and
binding 30 days after the date of its presentation to the Charter
Conference, and any level of suspension of benefits allowed thereby
may thereupon be put into effect by the injured Contracting Party in
such manner as that Contracting Party considers equivalent in the
circumstances, unless prior to the expiration of the 30 days period
the Charter Conference decides otherwise.
(f) In suspending any obligations to a non-complying Contracting
Party, an injured Contracting Party shall make every effort not to
affect adversely the trade of any other Contracting Party.
7. Each Contracting Party may designate two individuals who shall,
in the case of Contracting Parties which are also party to the GATT,
if they are willing and able to serve as panellists pursuant to this
Annex, be panellists currently nominated for the purpose of GATT
dispute panels. The Secretary-General may also designate, with the
approval of the Charter Conference, not more than 10 individuals,
who are willing and able to serve as panellists for purposes of
dispute resolution in accordance with paragraphs 2 to 4. The Charter
Conference may in addition decide to designate for the same purposes
up to 20 individuals, who serve on dispute settlement rosters of
other international bodies, who are willing and able to serve as
panellists. The names of all of the individuals so designated shall
constitute the dispute settlement roster. Individuals shall be
designated strictly on the basis of objectivity, reliability and
sound judgement and, to the greatest extent possible, shall have
expertise in international trade and energy matters, in particular
as relates to provisions applicable pursuant to Article 29. In
fulfilling any function pursuant to this Annex, designees shall not
be affiliated with or take instructions from any Contracting Party.
Designees shall serve for renewable terms of five years and until
their successors have been designated. A designee whose term expires
shall continue to fulfil any function for which that individual has
been chosen pursuant to this Annex. In the case of death,
resignation or incapacity of a designee, the Contracting Party or
the Secretary-General, whichever designated said designee, shall
have the right to designate another individual to serve for the
remainder of that designee's term, the designation by the
Secretary-General being subject to approval of the Charter
Conference.
8. Notwithstanding the provisions contained in this Annex,
Contracting Parties are encouraged to consult throughout the dispute
resolution proceeding with a view to settling their dispute.
9. The Charter Conference may appoint or designate other bodies or
fora to perform any of the functions delegated in this Annex to the
Secretariat and the Secretary-General.
1. Contributions payable by Contracting Parties shall be determined
by the Secretariat annually on the basis of their percentage
contributions required under the latest available United Nations
Regular Budget Scale of Assessment (supplemented by information on
theoretical contributions for any Contracting Parties which are not
UN members).
2. The contributions shall be adjusted as necessary to ensure that
the total of all Contracting Parties' contributions is 100 %.
13. Annex PA
LIST OF SIGNATORIES WHICH DO NOT ACCEPT THE PROVISIONAL APPLICATION
OBLIGATION OF ARTICLE 45 (3) (b) (In accordance with Article 45 (3)
(c))
14. Annex T
CONTRACTING PARTIES' TRANSITIONAL MEASURES (In accordance with
Article 32 (1))
List of Contracting Parties entitled to transitional arrangements
Albania
Armenia
Azerbaijan
Belarus
Bulgaria
Croatia
The Czech Republic
Estonia
Georgia
Hungary
Kazakhstan
Kyrgyzstan
Latvia
Lithuania
Moldova
Poland
Romania
The Russian Federation
Slovakia
Slovenia
Tajikistan
Turkmenistan
Ukraine
Uzbekistan
List of provisions subject to transitional arrangements
>TABLE POSITION>
Article 6 (2)
'Each Contracting Party shall ensure that within its jurisdiction it
has and enforces such laws as are necessary and appropriate to
address unilateral and concerted anti-competitive conduct in
economic activity in the energy sector.`
COUNTRY: ALBANIA
Sector
All energy sectors.
Level of government
National.
Description
There is no law on protection of competition in Albania. The law No
7746 of 28 July 1993 on hydrocarbons and the law No 7796 of 17
February 1994 on minerals do not include such provisions. There is
no law on electricity which is in the stage of preparation. This law
is planned to be submitted to the Parliament by the end of 1996. In
these laws Albania intends to include provisions on anti-competitive
conduct.
Phase-out
1 January 1998.
COUNTRY: ARMENIA
Sector
All energy sectors.
Level of government
National.
Description
At present a State monopoly exists in Armenia in most energy
sectors. There is no law on protection of competition, thus the
rules of competition are not yet being implemented. There are no
laws on energy. The draft laws on energy are planned to be submitted
to the Parliament in 1994. The laws are envisaged to include
provisions on anti-competitive behaviour, which would be harmonized
with the EC legislation on competition.
Phase-out
31 December 1997.
COUNTRY: AZERBAIJAN
Sector
All energy sectors.
Level of government
National.
Description
The anti-monopoly legislation is at the stage of elaboration.
Phase-out
1 January 2000.
COUNTRY: BELARUS
Sector
All energy sectors.
Level of government
National.
Description
Anti-monopoly legislation is at the stage of elaboration.
Phase-out
1 January 2000.
COUNTRY: GEORGIA
Sector
All energy sectors.
Level of government
National.
Description
Laws on demonopolization are at present at the stage of elaboration
in Georgia and that is why the State has so far the monopoly for
practically all energy sources and energy resources, which restricts
the possibility of competition in the energy and fuel complex.
Phase-out
1 January 1999.
COUNTRY: KAZAKHSTAN
Sector
All energy sectors.
Level of government
National.
Description
The law on development of competition and restriction of
monopolistic activities (No 656 of 11 June 1991) has been adopted,
but is of a general nature. It is necessary to develop the
legislation further, in particular by means of adopting relevant
amendments or adopting a new law.
Phase-out
1 January 1998.
COUNTRY: KYRGYZSTAN
Sector
All energy sectors.
Level of government
National.
Description
The law on anti-monopoly policies has already been adopted. The
transitional period is needed to adapt provisions of this law to the
energy sector which is now strictly regulated by the State.
Phase-out
1 July 2001.
COUNTRY: MOLDOVA
Sector
All energy sectors.
Level of government
National.
Description
The law on restriction of monopolistic activities and development of
competition of 29 January 1992 provides an organizational and legal
basis for the development of competition, and of measures to
prevent, limit and restrict monopolistic activities; it is oriented
towards implementing market economy conditions. This law, however,
does not provide for concrete measures of anti-competitive conduct
in the energy sector, nor does it cover completely the requirements
of Article 6.
In 1995 drafts of a law on competition and a State programme of
demonopolization of the economy will be submitted to the Parliament.
The draft law on energy which will also be submitted to the
Parliament in 1995 will cover issues on demonopolization and
development of competition in the energy sector.
Phase-out
1 January 1998.
COUNTRY: ROMANIA
Sector
All energy sectors.
Level of government
National.
Description
The rules of competition are not yet implemented in Romania. The
draft law on protection of competition has been submitted to the
Parliament and is scheduled to be adopted during 1994.
The draft contains provisions with respect to anti-competitive
behaviour, harmonized with the EC's law on competition.
Phase-out
31 December 1996.
COUNTRY: THE RUSSIAN FEDERATION
Sector
All energy sectors.
Level of government
The Federation.
Description
A comprehensive framework of anti-monopoly legislation has been
created in the Russian Federation but other legal and organizational
measures to prevent, limit or suppress monopolistic activities and
unfair competition will have to be adopted and in particular in the
energy sector.
Phase-out
1 July 2001.
COUNTRY: SLOVENIA
Sector
All energy sectors.
Level of government
National.
Description
Law on protection of competition adopted in 1993 and published in
Official Journal No 18/93 treats anti-competitive conduct generally.
The existing law also provides for conditions for the establishment
of competition authorities. At present the main competition
authority is the Office of Protection of Competition in the Ministry
of Economic Relations and Development. With regard to importance of
energy sector a separate law in this respect is foreseen and thus
more time for full compliance is needed.
Phase-out
1 January 1998.
COUNTRY: TAJIKISTAN
Sector
All energy sectors.
Level of government
National.
Description
In 1993 Tajikistan passed the law on demonopolization and
competition. However, due to the difficult economic situation in
Tajikistan, the jurisdiction of the law has been temporarily
suspended.
Phase-out
31 December 1997.
COUNTRY: TURKMENISTAN
Sector
All energy sectors.
Level of government
National.
Description
Under the Ruling of the President of Turkmenistan No 1532 of 21
October 1993 the Committee on Restricting Monopolistic Activities
has been etablished and is acting now, the function of which is to
protect enterprises and other entities from monopoly conduct and
practices and to promote the formation of market principles on the
basis of the development of competition and entrepreneurship.
Further development of legislation and regulations is needed which
would regulate anti-monopoly conduct of enterprises in the economic
activity in the energy sector.
Phase-out
1 July 2001.
COUNTRY: UZBEKISTAN
Sector
All energy sectors.
Level of government
National.
Description
The law on restricting monopoly activities has been adopted in
Uzbekistan and has been in force since July 1992. However, the law
(as is specified in Article 1 (3) does not extend to the activities
of enterprises in the energy sector.
Phase-out
1 July 2001.
Article 6 (5)
'If a Contracting Party considers that any specified
anti-competitive conduct carried out within the area of another
Contracting Party is adversely affecting an important interest
relevant to the purposes identified in this Article, the Contracting
Party may notify the other Contracting Party and may request that
its competition authorities initiate appropriate enforcement action.
The notifying Contracting Party shall include in such notification
sufficient information to permit the notified Contracting Party to
identify the anti-competitive conduct that is the subject of the
notification and shall include an offer of such further information
and cooperation as that Contracting Party is able to provide. The
notified Contracting Party or, as the case may be, the relevant
competition authorities may consult with the competition authorities
of the notifying Contracting Party and shall accord full
consideration to the request of the notifying Contracting Party in
deciding whether or not to initiate enforcement action with respect
to the alleged anti-competitive conduct identified in the
notification. The notified Contracting Party shall inform the
notifying Contracting Party of its decision or the decision of the
relevant competition authorities and may if it wishes inform the
notifying Contracting Party of the grounds for the decision. If
enforcement action is initiated, the notified Contracting Party
shall advise the notifying Contracting Party of its outcome and, to
the extent possible, of any significant interim development.`
COUNTRY: ALBANIA
Sector
All energy sectors.
Level of government
National.
Description
In Albania there are no established institutions to enforce the
competition rules. Such institutions will be provided for in the law
on the protection of competition which is planned to be finalized in
1996.
Phase-out
1 January 1999.
COUNTRY: ARMENIA
Sector
All energy sectors.
Level of government
National.
Description
Institutions to enforce the provisions of this paragraph have not
been established in Armenia.
The laws on energy and protection of competition are planned to
include provisions to establish such institutions.
Phase-out
31 December 1997.
COUNTRY: AZERBAIJAN
Sector
All energy sectors.
Level of government
National.
Description
Anti-monopoly authorities shall be established after the adoption of
anti-monopoly legislation.
Phase-out
1 January 2000.
COUNTRY: BELARUS
Sector
All energy sectors.
Level of government
National.
Description
Anti-monopoly authorities shall be established after the adoption of
anti-monopoly legislation.
Phase-out
1 January 2000.
COUNTRY: GEORGIA
Sector
All energy sectors.
Level of government
National.
Description
Laws on demonopolization are at present at the stage of elaboration
in Georgia and that is why there are no competition authorities
established yet.
Phase-out
1 January 1999.
COUNTRY: KAZAKHSTAN
Sector
All energy sectors.
Level of government
National.
Description
An Anti-monopoly Committee has been established in Kazakhstan, but
its activity needs improvement, both from legislative and
organizational points of view, in order to elaborate an effective
mechanism handling the complaints on anti-competitive conduct.
Phase-out
1 January 1998.
COUNTRY: KYRGYZSTAN
Sector
All energy sectors.
Level of government
National.
Description
There is no mechanism in Kyrgyzstan to control the anti-competitive
conduct and the relevant legislation. It is necessary to establish
relevant anti-monopoly authorities.
Phase-out
1 July 2001.
COUNTRY: MOLDOVA
Sector
All energy sectors.
Level of government
National.
Description
The Ministry of Economy is responsible for the control of
competitive conduct in Moldova. Relevant amendments have been made
to the law on breach of administrative rules, which envisage some
penalties for violating rules of competition by monopoly
enterprises.
The draft law on competition which is now at the stage of
elaboration will have provisions on the enforcement of competition
rules.
Phase-out
1 January 1998.
COUNTRY: ROMANIA
Sector
All energy sectors.
Level of government
National.
Description
Institutions to enforce the provisions of this paragraph have not
been established in Romania.
The institutions charged with the enforcement of competition rules
are provided for in the draft law on protection of competition which
is scheduled to be adopted during 1994.
The draft also provides a period of nine months for enforcement,
starting with the date of its publication.
According to the Europe Agreement establishing an association
between Romania and the European Communities, Romania was granted a
period of five years to implement competition rules.
Phase-out
1 January 1998.
COUNTRY: TAJIKISTAN
Sector
All energy sectors.
Level of government
National.
Description
Tajikistan has adopted laws on demonopolization and competition, but
institutions to enforce competition rules are in the stage of
development.
Phase-out
31 December 1997.
COUNTRY: UZBEKISTAN
Sector
All energy sectors.
Level of government
National.
Description
The law on restricting monopoly activities has been adopted in
Uzbekistan and has been in force since July 1992. However, the law
(as is specified in Article 1 (3) does not extend to the activities
of the enterprises in the energy sector.
Phase-out
1 July 2001.
Article 7 (4)
'In the event that transit of energy materials and products cannot
be achieved on commercial terms by means of energy transport
facilities the Contracting Parties shall not place obstacles in the
way of new capacity being established, except as may be otherwise
provided in applicable legislation which is consistent with
paragraph 1.`
COUNTRY: AZERBAIJAN
Sector
All energy sectors.
Level of government
National.
Description
It is necessary to adopt a set of laws on energy, including
licensing procedures regulating transit. During a transition period
it is envisaged to build and modernize power transmission lines, as
well as generating capacities with the aim of bringing their
technical level to the world requirements and adjusting to
conditions of a market economy.
Phase-out
31 December 1999.
COUNTRY: BELARUS
Sector
All energy sectors.
Level of government
National.
Description
Laws on energy, land and other subjects are being worked out at
present, and until their final adoption, uncertainty remains as to
the conditions for establishing new transport capacities for energy
carriers in the territory of Belarus.
Phase-out
31 December 1998.
COUNTRY: BULGARIA
Sector
All energy sectors.
Level of government
National.
Description
Bulgaria has no laws regulating transit of energy materials and
products. An overall restructuring is ongoing in the energy sector,
including development of institutional framework, legislation and
regulation.
Phase-out
The transitional period of seven years is necessary to bring the
legislation concerning the transit of energy materials and products
in full compliance with this provision.
1 July 2001.
COUNTRY: GEORGIA
Sector
All energy sectors.
Level of government
National.
Description
It is necessary to prepare a set of laws on the matter. At present
there are substantially different conditions for the transport and
transit of various energy sources in Georgia (electric power,
natural gas, oil products, coal).
Phase-out
1 January 1999.
COUNTRY: HUNGARY
Sector
Electricity industry.
Level of government
National.
Description
According to the current legislation establishment and operation of
high-voltage transmission lines is a State monopoly.
The creation of the new legal and regulatory framework for
establishment, operation and ownership of high-voltage transmission
lines is under preparation.
The Ministry of Industry and Trade has already taken the initiative
to put forward a new Act on Electricity Power, that will have its
impact also on the Civil Code and on the Act on Concession.
Compliance can be achieved after entering in force of the new law on
electricity and related regulatory decrees.
Phase-out
31 December 1996.
COUNTRY: POLAND
Sector
All energy sectors.
Level of government
National.
Description
Polish law on energy, being in the final stage of coordination,
stipulates for creating new legal regulations similar to those
applied by free market countries (licenses to generate, transmit,
distribute and trade in energy carriers). Until it is adopted by the
Parliament a temporary suspension of obligations under this
paragraph is required.
Phase-out
31 December 1995.
Article 9 (1)
'The Contracting Parties acknowledge the importance of open capital
markets in encouraging the flow of capital to finance trade in
energy materials and products and for the making of and assisting
with regard to investments in economic activity in the energy sector
in the areas of other Contracting Parties, particularly those with
economies in transition. Each Contracting Party shall accordingly
endeavour to promote conditions for access to its capital market by
companies and nationals of other Contracting Parties, for the
purpose of financing trade in energy materials and products and for
the purpose of investment in economic activity in the energy sector
in the areas of those other Contracting Parties, on a basis no less
favourable than that which it accords in like circumstances to its
own companies and nationals or companies and nationals of any other
Contracting Party or any third State, whichever is the most
favourable.`
COUNTRY: AZERBAIJAN
Sector
All energy sectors.
Level of government
National.
Description
Relevant legislation is at the stage of elaboration.
Phase-out
1 January 2000.
COUNTRY: BELARUS
Sector
All energy sectors.
Level of government
National.
Description
Relevant legislation is at the stage of elaboration.
Phase-out
1 January 2000.
COUNTRY: GEORGIA
Sector
All energy sectors.
Level of government
National.
Description
Relevant legislation is at the stage of preparation.
Phase-out
1 January 1997.
COUNTRY: KAZAKHSTAN
Sector
All energy sectors.
Level of government
National.
Description
The bill on foreign investments is at the stage of authorization
approval with the aim to adopt it by the Parliament in autumn 1994.
Phase-out
1 July 2001.
COUNTRY: KYRGYZSTAN
Sector
All energy sectors.
Level of government
National.
Description
Relevant legislation is currently under preparation.
Phase-out
1 July 2001.
Article 10 (7) - Specific measures
'Each Contracting Party shall accord to investments in its area of
investors of another Contracting Party, and their related activities
including management, maintenance, use, enjoyment or disposal,
treatment no less favourable than that which it accords to
investments of its own investors or of the investors of any other
Contracting Party or any third State and their related activities
including management, maintenance, use, enjoyment or disposal,
whichever is the most favourable.`
COUNTRY: BULGARIA
Sector
All energy sectors.
Level of government
National.
Description
Foreign persons may not acquire property rights over land. A company
with more than 50 % of foreign person's share may not acquire
property right over agricultural land.
Foreigners and foreign legal persons may not aquire property rights
over land except by way of inheritance according to the law. In this
case they have to make it over.
A foreign person may aquire property rights over buildings, but
without property rights over the land.
Foreign persons or companies with foreign controlling participation
must obtain a permit before performing the following activities:
- exploration, development and extraction of natural resources from
the territorial sea, continental shelf or exclusive economic zone,
- acquisition of real estate in geographic regions designated by the
Council of Ministers,
- the permits are issued by the Council of Ministers or by a body
authorized by the Council of Ministers.
Phase-out
1 July 2001.
Article 14 (1) (d)
'Each Contracting Party shall with respect to investments in its
area of investors of any other Contracting Party guarantee the
freedom of transfer into and out of its area, including the transfer
of:
unspent earnings and other remuneration of personnel engaged from
abroad in connection with that investment; `
COUNTRY: BULGARIA
Sector
All energy sectors.
Level of government
National.
Description
Foreign nationals employed by companies with more than 50 % of
foreign participation, or by a foreign person registered as sole
trader or a branch or a representative office of a foreign company
in Bulgaria, receiving their salary in Bulgarian leva, may purchase
foreign currency not exeeding 70 % of their salary, including social
security payments.
Phase-out
1 July 2001.
COUNTRY: HUNGARY
Sector
All energy sectors.
Level of government
National.
Description
According to the Act on Investments of Foreigners in Hungary,
Article 33, foreign top managers, executive managers, members of the
Supervisory Board and foreign employees may transfer their income up
to 50 % of their aftertax earnings derived from the company of their
employment through the bank of their company.
Phase-out
The phase out of this particular restriction depends on the progress
Hungary is able to make in the implementation of the foreign
exchange liberalization programme whose final target is the full
convertibility of the Forint. This restriction does not create
barriers to foreign investors. Phase-out is based on stipulations of
Article 32.
1 July 2001.
Article 20 (3)
'Each Contracting Party shall designate one or more enquiry points
to which requests for information about the abovementioned laws,
regulations, judicial decisions and administrative rulings may be
addressed and shall communicate promptly such designation to the
Secretariat which shall make it available on request.`
COUNTRY: ARMENIA
Sector
All energy sectors.
Level of government
National.
Description
In Armenia there are no official enquiry points yet to which
requests for information about the relevant laws and other
regulations could be addressed. There is no information centre
either. There is a plan to establish such a centre in 1994 to 1995.
Technical assistance is required.
Phase-out
31 December 1996.
COUNTRY: AZERBAIJAN
Sector
All energy sectors.
Level of government
National.
Description
There are no official enquiry points so far in Azerbaijan to which
requests for information about relevant laws and regulations could
be addressed. At present such information is concentrated in various
organizations.
Phase-out
31 December 1997.
COUNTRY: BELARUS
Sector
All energy sectors.
Level of government
National.
Description
Official enquiry offices which could give information on laws,
regulations, judicial decisions and administrative rulings do not
exist yet in Belarus. As far as the judicial decisions and
administrative rulings are concerned there is no practice of their
publishing.
Phase-out
31 December 1998.
COUNTRY: KAZAKHSTAN
Sector
All energy sectors.
Level of government
National.
Description
The process of establishing enquiry points has begun. As far as the
judicial decisions and administrative rulings are concerned they are
not published in Kazakhstan (except for some decisions made by the
Supreme Court), because they are not considered to be sources of
law. To change the existing practice will require a long
transitional period.
Phase-out
1 July 2001.
COUNTRY: MOLDOVA
Sector
All energy sectors.
Level of government
National.
Description
It is necessary to establish enquiry points.
Phase-out
31 December 1995.
COUNTRY: THE RUSSIAN FEDERATION
Sector
All energy sectors.
Level of government
The Federation and the Republics constituting Federation.
Description
No official enquiry points exist in the Russian Federation as of now
to which requests for information about relevant laws and other
regulation acts could be addressed. As far as the judicial decisions
and administrative rulings are concerned they are not considered to
be sources of law.
Phase-out
31 December 2000.
COUNTRY: SLOVENIA
Sector
All energy sectors.
Level of government
National.
Description
In Slovenia there are no official enquiry points yet to which
requests for information about relevant laws and other regulatory
acts could be addressed. At present such information is available in
various ministries. The law on foreign investments which is under
preparation foresees establishment of such an enquiry point.
Phase-out
1 January 1998.
COUNTRY: TAJIKISTAN
Sector
All energy sectors.
Level of government
National.
Description
There are no enquiry points yet in Tajikistan to which requests for
information about relevant laws and other regulations could be
addressed. It is only a question of having available funding.
Phase-out
31 December 1997.
COUNTRY: UKRAINE
Sector
All energy sectors.
Level of government
National.
Description
Improvement of the present transparency of laws up to the level of
international practice is required. Ukraine will have to establish
enquiry points providing information about laws, regulations,
judicial decisions and administrative rulings and standards of
general application.
Phase-out
1 January 1998.
Article 22 (3)
'Each Contracting Party shall ensure that if it establishes or
maintains a State entity and entrusts the entity with regulatory,
administrative or other governmental authority, such entity shall
exercise that authority in a manner consistent with the Contracting
Party's obligations under this Treaty.`
COUNTRY: THE CZECH REPUBLIC
Sector
Uranium and nuclear industries.
Level of government
National.
Description
In order to deplete uranium ore reserves that are stocked by
Administration of State Material Reserves, no imports of uranium ore
and concentrates, including uranium fuel bundles containing uranium
of non-Czech origin, will be licensed.
Phase-out
1 July 2001.
ANNEX 2
DECISIONS WITH RESPECT TO THE ENERGY CHARTER TREATY
The European Energy Charter Conference has adopted the following
Decisions:
1. With respect to the Treaty as a whole
In the event of a conflict between the treaty concerning Spitsbergen
of 9 February 1920 (the Svalbard Treaty) and the Energy Charter
Treaty, the treaty concerning Spitsbergen shall prevail to the
extent of the conflict, without prejudice to the positions of the
Contracting Parties in respect of the Svalbard Treaty. In the event
of such conflict or a dispute as to whether there is such conflict
or as to its extent, Article 16 and Part V of the Energy Charter
Treaty shall not apply.
2. With respect to Article 10 (7)
The Russian Federation may require that companies with foreign
participation obtain legislative approval for the leasing of
federally-owned property, provided that the Russian Federation shall
ensure without exception that this process is not applied in a
manner which discriminates among investments of investors of other
Contracting Parties.
1. The term 'freedom of transfer` in Article 14 (1) does not
preclude a Contracting Party (hereinafter referred to as the
'Limiting Party`) from applying restrictions on movement of capital
by its own investors, provided that:
(a) such restrictions shall not impair the rights granted pursuant
to Article 14 (1) to investors of other Contracting Parties with
respect to their investments;
(b) such restrictions do not affect current transactions; and
(c) the Contracting Party ensures that investments in its area of
the investors of all other Contracting Parties are accorded, with
respect to transfers, treatment no less favourable than that which
it accords to investments of investors of any other Contracting
Party or of any third State, whichever is the most favourable.
2. This Decision shall be subject to examination by the Charter
Conference five years after entry into force of the Treaty, but not
later than the date envisaged in Article 32 (3).
3. No Contracting Party shall be eligible to apply such restrictions
unless it is a Contracting Party which is a State that was a
constituent part of the former Union of Soviet Socialist Republics,
which has notified the provisional Secretariat in writing no later
than 1 July 1995 that it elects to be eligible to apply restrictions
in accordance with this Decision.
4. For the avoidance of doubt, nothing in this Decision shall
derogate, as concerns Article 16, from the rights hereunder of a
Contracting Party, its investors or their investments, or from the
obligations of a Contracting Party.
5. For the purposes of this Decision:
'current transactions` are current payments connected with the
movement of goods, services or persons that are made in accordance
with normal international practice, and do not include arrangements
which materially constitute a combination of a current payment and a
capital transaction, such as deferrals of payments and advances
which is meant to circumvent respective legislation of the Limiting
Party in the field.
4. With respect to Article 14 (2)
Without prejudice to the requirements of Article 14 and its other
international obligations, Romania shall endeavour during the
transition to full convertibility of its national currency to take
appropriate steps to improve the efficiency of its procedures for
the transfers of investment returns and shall in any case guarantee
such transfers in a freely convertible currency without restriction
or a delay exceeding six months. Romania shall ensure that
investments in its area of the investors of all other Contracting
Parties are accorded, with respect to transfers, treatment no less
favourable than that which it accords to investments of investors of
any other Contracting Party or of any third State, whichever is the
most favourable.
An investment of an investor referred to in Article 1 (7) (a) (ii),
of a Contracting Party which is not party to an EIA or a member of a
free-trade area or a customs union, shall be entitled to treatment
accorded under such EIA, free-trade area or customs union, provided
that the investment:
(a) has its registered office, central administration or principal
place of business in the area of a party to that EIA or member of
that free-trade area or customs union; or
(b) in case it only has its registered office in that area, has an
effective and continuous link with the economy of one of the parties
to that EIA or member of that free-trade area or customs union.
(1*) This Decision has been drafted in the understanding that
Contracting Parties which intend to avail themselves of it and which
also have entered into Partnership and Cooperation Agreements with
the European Communities and their Member States containing an
article disapplying those Agreements in favour of the Treaty, will
exchange letters of understanding which have the legal effect of
making Article 16 of the Treaty applicable between them in relation
to this Decision. The exchange of letters shall be completed in good
time prior to signature.