The Commission has already argued before the arbitration tribunals (here and here) that the Lisbon Treaty is an international agreement. However, since Article 46 of the Treaty prohibits any reservations about the treaty, it could be justified that the effective implementation of the purpose and purpose of the treaty as a whole would be an obstacle to an interim agreement. The purpose and purpose of a contract may be deducted from its preamble and its essential material provisions (such as Article 2 of the ESTK), including those where no reservations or derogations are permitted. In the case of the CEC, an inter-institutional agreement could be reached to abstain from a blanket ban on reservations. The alternative to legal clarity would be a simple political decision. The Energy Charter Conference, the governing and decision-making body for the Energy Charter process, made up of all states or regional economic integration organizations that have signed the ESTV or joined the eECT, has approved the modernization of the ESTK. On 15 July 2019, the Council authorised the Commission to open negotiations on behalf of the EU. In its negotiating guidelines, the Council intends to “align the investment protection provisions of the ECT with the modern standards of recent agreements concluded by the EU and its Member States” and “to be brought into line with the EU`s approach in its investment protection agreements and with the EU`s position in the CCICI WG III and ICSID to ensure that this approach is reflected in the modernized ESTK.” He pledged to “ensure that any regulation or obligation agreed by the European Union is in line with the EU legal framework.” The EU presented this position on the strategic options for the modernisation of the Ect adopted by the Energy Charter Conference on 6 October 2019. The Energy Charter Treaty (“ECT”) is a multilateral treaty with 48 contracting parties (1), including the European Union2 and all 27 EU member states.

On the EU and Member States side, a joint agreement is reached between the UNION and the Member States, which falls within the competence of the Union and the Member States.3 Article 26 of the ESTK allows an investor of a contracting party to bring disputes against another contracting party over alleged violations of Part III of the Ect. To date, no arbitration proceedings have been initiated against the Union under the ECT. However, given that both the EU and the Member States are parties to the ESTK, it is important to answer the question of who will be the right respondent for an investor from a third country: is it only the Member State or the Member State and the Union or the Union? Article 41 of the Vienna Convention on Treaty Law stipulates that the modification of multilateral treaties between a select group between the contracting parties to a multilateral treaty (agreement between the two parties) must be provided for by the treaty or, at the very least, not prohibited. Nor should it interfere with the exercise of its contract rights by the other parties or the performance of its obligations, nor with a provision whose derogation is inconsistent with the actual performance of the purpose and purpose of the contract as a whole. Following Achmea, EU Member States have announced their intention to end all intra-EU bits by 6 December 2019. Although they have apparently reached a consensus on the future of the bit within the EU, Achmea`s impact on investor-state arbitration under the Energy Charter Treaty (ECT) remains controversial. Twenty-two Member States stated that an internal ECEK arbitration procedure was equally incompatible with EU primary law and attempted to “immediately discuss the need for additional measures to draw all the consequences of the Achmea decision on the application of the Energy Charter Treaty within the EU.