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This study discusses how the World Trade Organization could promote the development of an international gas market by playing a more prominent role in regulating rights essential to effective pipeline gas transit. Gas transit is network-dependent in the sense that it cannot be established without the existence of pipeline infrastructure in the territory of a transit State and the ability to access this infrastructure. Nevertheless, at an inter-regional level, there are no sufficient pipeline networks that would allow gas to travel freely from a supplier to the most lucrative markets. The existing networks are often operated by either private or State-controlled vertically-integrated monopolies that are usually reluctant to release unused pipeline capacity to their potential competitors. These obstacles diminish the gains from trade for States endowed with scarce and relatively immobile natural resources, such as gas, including developing land-locked countries that rely on revenues from gas exports. These obstacles can also undermine Members’ energy security and their sustainable development achieved by shifting domestic production from dirty fuels to cleaner energy sources – namely gas. From a technical perspective, gas transit can be established by invoking what is referred to in this study as ‘third-party access’ and/or ‘capacity establishment’ rights. The first main question that this thesis analyses is, therefore, whether, and, if so, how these rights are regulated by WTO rules relevant to transit, including: GATT Article V:2 (first and second sentences) establishing the principles of freedom of transit and non-discrimination, the ‘non-violation complaint’ provision under GATT Article XXIII:1(b), and the GATS. This question has not been answered by WTO panels or examined sufficiently by scholars. The key contribution of this study to the existing academic literature on energy transit lies in the fact that this study analyses the above rules through the prism of systemic integration of WTO law sources with other relevant rules of public international law, including principles of general international law and treaties regulating transit. By contrast, previous researchers discussed the regulation of third-party access and capacity establishment rights from a limited perspective of WTO law. The second main question examined in this study is how WTO transit rules could be improved through a legislative reform to regulate particular aspects of trade in pipeline gas better – namely third-party access and capacity establishment rights. This question is answered by exploring two options: the codification of the existing principles of general international law relevant to these rights in the WTO legal system and the progressive development of WTO transit rules through the expansion of additional commitments of Members on energy services under the GATS. While this study analyses the relationship between WTO transit obligations and inherent ancillary rights (namely third-party access and capacity establishment rights) implied in these obligations in the context of trade in pipeline gas, the conclusions reached here may have practical application in other areas of network-bound trade, such as trade in electric power.

Mokslinio tyrimo problema Prieš keturis dešimtmečius Vienos konvencija dėl tarptautinių sutar-čių teisės įtvirtino, kad tarptautinė sutartis turi būti aiškinama laikantis geros valios principų, atsižvelgiant į joje vartojamų sąvokų įprastinę reikšmę sutar-ties kontekste ir atsižvelgiant į sutarties objektą bei jos tikslą. Šios taisyklės paprotinį statusą yra pripažinęs ir Tarptautinis Teisingumo Teismas. Nepai-sant to, kartais abejojama tiek dėl to, ar įmanomos aiškinimo normos, (t.y. ar ne tiksliau jas vadinti principais) tiek ir dėl jų naudingumo (t.y. ar ne geriau būtų palikti jas nerašytinėmis) – į tai dėmesį buvo atkreipusi ir pati Tarptauti-nės teisės komisija, rengusi šios taisyklės formuluotę. Kita vertus, jau sutarties rengimo metu buvo aiškūs nuomonių skirtumai dėl tarptautinių sutarčių aiški-nimo, o priėmus Konvenciją mokslinės Niuheiveno grupės atstovai prognoza-vo jos nesėkmę dėl jos „įkyrios, praktikoje nepritaikomos, konformizmo reika-laujančios pažodinio aiškinimo taisyklės.“ Šiuo požiūriu tarptautinės sutartys turėjo būti vertinamos kaip tęstinis šalių bendravimo ir bendradarbiavimo pro-cesas, kuris reikalautų į kontekstą atsižvelgti kur kas labiau nei tai numatė Vienos Konvencija, t.y. sutartis turėtų būti aiškinama siekiant nustatyti ben-druosius šalių ketinimus įsipareigoti sutartimi, o aiškinant sutartį būtina atsi-žvelgti į tarptautinės bendruomenės vertybes. Nepaisant šių akcentų, tekstas būtų išlikęs kaip reikšmingas šalių lūkesčių rodiklis:... [toliau žr. visą tekstą] / Research problem It has been four decades since conclusion of the Vienna Convention on the law of treaties. The Convention included a provision that a treaty shall be inter-preted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The customary status of this rule has been accepted by the International Court of Justice. Disregarding that, some question whether the rules, as opposed to principles, of interpretation are possible (i.e. would that not be better not to reduce them to writing). The International Law Commission itself has com-mented on this. On the other hand, the differences concerning interpretation of treaties were apparent already at the time the treaty was drafted. When the Convention was finally adopted, a few scholars representing the so-called New Haven approach opined that they expected the Convention to fail due to its “insistent emphasis upon an impossible, comformity-imposing textuality”. In their view, conclusion of an international agreement was a continuous process of cooperation and collaboration of the parties, which required a much more detailed focus on the intentions of the parties than the Vienna Convention rule of interpretation envisaged. They called for interpretation which would search for genuine shared expectations, together with the complementary appeals for ‘supplementing’ and ‘policing’ communications in accordance with... [to full text]

The so called "Denial of Benefits" clause (DOB) gives the respondent state an opportunity to exclude third parties to the investment protection treaties from enjoying the benefits of the treaty without assuming reciprocal obligations. No less than seventy-three investor-state disputes have been brought to arbitration under the ECT since its entry into force back in 1998. The DOB clause in ECT, Art. 17 has never been successfully invoked. States have tried to exercise their right in at least ten cases without success. This paper poses two research questions. First, what are the distinguishing features of Art. 17 of the ECT that make it function differently from other DOB clauses? Second, given the arbitral decisions, can the Art. 17 of the ECT be effectively invoked by respondent states? The paper is divided into five chapters. The first chapter introduces the topic of DOB clauses and the purpose of this paper. The second chapter is theoretical and addresses the topic of DOB clauses in general and further outlines their past, present and future. The third chapter focuses specifically on the Art. 17 of the ECT it examines the ECT arbitral awards and decisions that touched upon the clause. Chapter four aims to show the procedural issues of DOB clauses from the perspective of respondent states, it...

Key words: Foreign direct investment protection, the most favourite nation clause, international minimum standard, national treatment, renewable resource, solar plant, Energy Charter Treaty Protection of foreign investments The diploma thesis deals with the importance of foreign direct investments ("FDI") protection. In the first section of the thesis a brief description of FDI protection history is presented. This description is focused on the development of the law of FDI protection and the means of protection execution (diplomatic protection, arbitration, use of power) are described. The changes incurred in the 20th century in international relations are analysed as well. Further the thesis provides a description of different regimes applicable in the field of FDI protection. Regimes like international minimum standard, standard of national treatment and the most favoured nation clause are comprised. The third section is focused on the Czech Republic and FDI support and protection in here. This part deals with the historical development especially in last 20 years. The system of support and protection of FDI is described and the most important disputes in this field are analysed. Finally the last section of thesis is focused on a very actual topic i.e. solar energy and legislature changes in...

1 Abstract This dissertation deals with investment protection in the European Union from several points of view. The first part deals with the history of investment protection and its main basis and grounds for current legislation and proposals for future regulation, particularly within the EU. In subsequent parts, current legislation and intra-European Union investment protection is analysed in detail, including the question of validity and applicability of Intra-EU BITs, i.e. bilateral treaties concluded between two EU Member States. The analysis is made from the perspective of EU law, as well as from the point of view of public international law. The dissertation further deals with their relationship and demonstrates contradictions between them in two crucial cases, Eureko/Achmea and Micula. Additional themes of this dissertation are the powers of the European Union regarding investment protection and the conclusion of international treaties such as CETA and TTIP. This dissertation further deals with the status, jurisdiction and functioning of the International Centre for Settlement of Investment Disputes (ICSID), demonstrating the relatively smooth and widely accepted investment dispute settlement mechanism. In this regard, the proposed EU Multilateral Investment Court project in analysed, including a...

The relationship between international investment agreements and EU law has attracted increased attention in past few years. The aim of this thesis is to bring a detailed analysis of various aspects of this complicated relationship. In attainment of this aim it proceeds in the following steps. After a short introduction (Chapter I.), Chapter II. briefly overviews typical content of bilateral investment treaties, following with a more detailed analysis of relevant EU law rules concerning foreign investment and subsequent comparison of both sets of rules. Chapter III. deals with investment agreements to be concluded by the EU, in particular with questions of external competence for foreign investment, responsibility for breaches of investment agreements concluded by the EU and the future shape of EU investment policy. The status of existing bilateral investment treaties concluded between EU member states and third countries is analyzed in Chapter IV. Chapter V. tackles various issues related to investment treaties concluded between member states (so called intra-EU BITs).

Investment Policy of the European Union - protection of foreign direct investment Abstract One of the changes brought about by the Lisbon Treaty is the explicit inclusion of foreign direct investment and its protection in the common commercial policy of the European Union. This is one of the areas of exclusive competence of the EU. The European Union has subsequently stated negotiating bilateral agreements governing, inter alia, investment issues. However, it has not been spared from controversy and negative publicity that has been accompanying especially the TTIP and the CETA. This work aims to analyse the investment policy of the EU and mutual interaction of its institutions with the Member States and third parties. After general introduction to the topic of international investment law and EU law (chapters II. and III.), it is devoted to the issue of protection of foreign investment in the internal market. Its regime is then compared with the BIT regime (chapter IV.). Attention is then focussed towards the EU's external relations in the field of investment protection. Its competence is subjected to further analysis (chapter V.) and current results of efforts of the Commission and the EU as such are also discussed (chapter VI.). It is so in the light of possible impacts of foreign investment in terms of...

The absence of a relevant legal basis between huge commercial partners such as the EU as a single entity and the Russian Federation promoted the emergence of a legal vacuum. The long term cooperation between Russia and the EU has only one bilateral agreement - the Agreement on Partnership and Cooperation signed in 1994, which is however obsolete, and does not meet the contemporary needs. The adequate legal basis for Russia-EU cooperation in the gas sector is still missing. The protection of investments in the gas sector is being realized by bilateral agreements between Russia and EU member states, soft law and general international agreements, without any specifications for those two partners. The only international instrument covering the energy relations of these two partners - Energy Charter Treaty cannot be considered as a reliable mechanism, as Russia withdrew from it more than 8 years ago. The reasons of the withdrawal and the Yukos case as an illustrative example are discussed in this paper. In order to avoid uncertainty in such strategic area as gas investment relations and unpredictable decisions between the states represented by the commercial entities, there is a need to design a substantive legal basis, and a need to consider on the adequate dispute resolution body. In this thesis, key...