- The Preamble to the Charter contains reference to the USSR as a continuing entity although by the time the Charter was signed it had in fact dissolved. One of the regional organisations which was a signatory was the EC; the other, the Interstate Economic Committee, was replaced by the Commonwealth of Independent States shortly thereafter.
- European Energy Charter, signed at The Hague December 1991.
- With the exception of New Zealand and Turkey.
- Communication from the Commission on A European Energy Charter, COM (91) 36, 14 February 1991.
- Lowe, Legal aspects of the European Energy Charter 2(4) ULR [1991] 155.
- 21 out of 24 members of the International Energy Agency of the OECD are signatories; the IEA has among its objectives the cultivation of alternative sources and the promotion of cooperation with oil producers and other oil consumers (IEA, The IEA (1983, Paris)).
- The economies in transition are very energy inefficient, industry consuming approximately 50 per cent of the supply compared with 33 per cent for Western Europe. Van der Linde, Empty barrels make the most sound: energy markets in Eastern Europe and the Soviet Union, 15(2) W Comp (1991) 127.
- The IEA has very narrow membership and closely reflects its origins as a response to the 1973 OPEC crisis; the 1981 UN Conference on New and Renewable Sources of energy focused only on alternatives to traditional energy sources.
- Saunders, Energy, natural resources and the Canada-US Free Trade Agreement 8 JERL (1990) 34.
- 7(2) ICSID Review (1993) 297.
- “Agenda 21”, in Robinson (ed), Agenda 21 and the UNCED Proceedings (1992, New York).
- Agreement on an international energy programme, establishing the International Energy Agency (14 ILM (1975) 1).
- Long-term Cooperation Programme on Energy (15 ILM (1976) 249).
- For example, the rapid development of the North Sea oil and gas fields.
- IEA, supra, note 6.
- The EC imports half of its energy requirements (Makers, The Community's energy policy with regard to oil and natural gas [1992] 2 OGLTR 35); the US is predicted to import 52.5 per cent by the year 2000 (US Energy Information Administration, International Energy Outlook 1992) and Japan imports over 90 per cent of its oil (MacDonald, Deregulation of the Japanese Oil Industry—Energy Security Issues for the 1990s (1992, London).
- The USSR held 5.8 per cent of the world reserves of oil and 37.6 per cent of the reserves of natural gas. Van der Linde, supra, note 7.
- Russia produced 91 per cent and 75 per cent of oil and gas respectively in 1988 (Miller and Campbell, Foreign Investment in the Russian Oil and Gas Industry [1992] 1 OGLTR 8).
- Van der Linde, supra n 7.
- Particularly Russia and Kazakhstan. Friedrich, Recent developments in petroleum investment in Kazakhstan, [1992] 4 OGLTR 100.
- Butler and Gashi-Butler, The Kazakh Sub-Soil Code [1992] 5 OGLTR 125.
- For example, the Russian sub-soil law of 21 February 1992 fails to define the “right to use and manage” and leaves authority to be exercised jointly by the federal, regional and territorial authorities: Byrnes, The development of petroleum laws in Russia: some thoughts on the new sub-soil and licensing law [1992] 3 OGLTR 73.
- Miller and Campbell, supra n 18.
- Kryukov and Moe, The changing structure of the Russian oil industry [1991] 1 OGLTR 367.
- For example, the nuclear accident at Tomsk-7 in Siberia in April 1993 (The Independent, 18 April 1993). The Chernobyl power station has been brought back on-line.
- Friedrich and Eiche, The impact of Russian environmental regulation on petroleum operations, Comment [1992] 7 OGLTR 191. The legislation stops short of setting enforceable standards and is seen as aimed primarily at public authorities.
- Articles on government procurement, intellectual property, monopolies and state aids have been deleted, however.
- Helsinki Final Act, 1975 HMSO Cmnd 6198.
- Supra note 4.
- At the insistence of the economies in transition: Cameron, The European Energy Charter: a Magna Carta for energy? 7 OGLTR (1991) 207.
- Charter of Paris for a New Europe, 1990 HMSO Cmnd 1464. This Charter, referred to in the Preamble, was centred on concepts of economic liberty, social justice and environmental responsibility; it places much emphasis on the expansion and diversification of trade within the GATT but requires signatories only to raise awareness, exchange information and, on the economic front, cooperate.
- 63 AJIL (1969) 875.
- Article 31(2)(b).
- Article 32.
- Preamble to the GATT, 55 UNTS 194; TIAS 1700.
- Roessler, The scope, limits and function of the GATT legal system, GATT Working Paper, (1985, Geneva).
- Currently all the republics of the CIS; Albania; Bulgaria and the remnants of Yugoslavia. The Czech Republic and the Slovak Republic were admitted as independent members following the division in 1992 of Czechoslovakia.
- “Membership” is an ambiguous term in relation to the GATT; it is used broadly to indicate participation in the GATT and related agreements other than as an observer, under the Protocol of Provisional Application, individual accession agreements or by acceptance. Following the Uruguay Round the GATT is to be put on a permanent basis with the establishment of the World Trade Organisation.
- Haus, Globalising the GATT: the Soviet Union's successor states, Eastern Europe and the international trading system (1992, Washington).
- In the Uruguay Round, negotiations on which were concluded on 15 December 1993 but the Final Act of which has not yet been signed, a General Agreement on Trade in Services was agreed which, once established, will parallel the GATT.
- IEA, Global Energy: the changing outlook (1992 IEA/OECD, Paris). The World Development Report 1992 of the World Bank, on Development and Environment, reiterated these findings.
- MacDonald, supra note 16.
- Article 4.
- GATT Articles: II, IV, XV, XVIII, XXII, XXIII, XXV-XXXI, XXXIII, XXXVI- XXXVIII. Related instruments: various agreements unrelated to energy (International Dairy Agreement et al) or to developed countries; parts of the Standards Code, the Agreement on Subsidies and Countervailing Measures, the Anti-Dumping Code, the Declaration on Measures taken for Balance of Payments purposes, Agreements on Customs Valuation and Import Licensing, the Agreement on Government Procurement. All in GATT BISD, various.
- The Grandfather Clause does not appear in the GATT itself; it was included in the Protocol of Provisional Application and all subsequent accession agreements. The application of the GATT rules “as they are applied between particular Contracting Parties” who are members of the GATT will therefore operate to include this clause.
- Article 25 of the Treaty in fact incorporates similar provisions to Article XVII:1 of the GATT. The Treaty provision specifies that state trading entities are to apply the national treatment standard to investors of other Contracting Parties.
- Van der Linde, The energy charter and the plight of the oil industry in the former Soviet Union, ULR 2(4) 162 (1992).
- Sauvignon, La Clause de la Nation la Plus Favourisée, (1972, Grenoble).
- McGovern, International Trade Regulation: GATT, the US and the EC (2nd edn, 1986, Exeter).
- Petersmann, Constitutional foundations of public international economic law, in Van Dijk (ed), Restructuring the international economic order: the rule of law and lawyers (1987, Kluwer).
- Golt, The GATT negotiations 1986–90: origins, issues and perspectives, 1988.
- That the fact that comparative advantage translates through trade into the maximum productivity for all nations, had to be reiterated in the Leutwiler Report which preceded the launch of the Uruguay Round, tends to support this. Recommendation of the Leutwiler Group, reprinted in Appendix 4, Golt, supra note 51.
- McRae and Thomas, The development of the MFN principle: Treaties of Friendship, Navigation and Commerce and the GATT, in Irish and Carasco (eds), Legal Framework for Canada-US Trade (1987, Canada).
- Along with the opportunity for general reciprocity and the diminution of the overtly political nature of the measures agreed: Gold, Strengthening the soft international law of exchange agreements, 77 AJIL (1983) 443.
- The OECD Report on Competition and Trade Policies: Their Interaction (1984, OECD Geneva) found none in this sector.
- McGovern, supra n 49.
- Currently the 4th ACP-EEC Convention, signed at Lomé, 15 December 1989 (1992, Brussels).
- The GATT amendment provisions in Article XXX allow amendment only unanimously to Part I, Article XXIX and XXX; other Articles can be amended by two thirds of the Contracting Parties. The large number of Contracting Parties and the complex network of legal relationships created by the existence of partially accepted amendments have led to the provision not being used since 1965: instead, decisions are taken by the Contracting Parties under Article XXV, or agreements and codes are made by sub-groups only.
- Articles 41 and 47.
- Hancher and Lucas, International supervision of state and private organisation of the energy trade, Energy Law ′90, 165, IBA.
- Communication from the Commission on the Internal Energy Market, COM(88) 238 FIN.
- Herman, Cross-border trading of electricity, Energy Law ′92 507.
- Maters, The Community's energy policy with regard to oil and natural gas, 2 OGLTR (1992) 35.
- In Rudden and Wyatt (eds), Basic Community Laws, 4th edn, Oxford 1993.
- 28 ILM (1988) 281.
- Chapters 9 and 6 respectively.
- Under Chapter 18 of the FTA, after reference to the Canada-US Trade Commission, and under Chapters 19 and 20 of NAFTA, which build on the FTA mechanism.
- Jimison, Status, prospects and institutional constraints on economic efficiency in North American electricity and natural gas trade, Energy Law ′92 517.
- Hancher and Lucas, supra n 60.
- Jimison, supra n 67.
- Kryukov and Moe, supra, note 24.
- Matsushita, Coordinating international trade with competition, in Petersmann & Hilf (eds), The new GATT round of multilateral trade negotiations: legal and economic problems (1988, Kluwer).
- Rege, Economies in transition and developing countries: prospects for greater co-operation (27(1) J World Trade (1993) 8).
- Grey, The conflict between trade policy and competition policy: a comment, in Petersmann and Hilf (eds), supra, n 71.
- Reprinted in US Department of State Pub no 3206 Commercial Policy Series 114.
- Price-fixing, market division, the allocation of customers, discrimination against particular producers, limitations of production and the illegal extension of intellectual property rights were listed.
- Ad Hoc Committee on Restrictive Business Practices Draft Convention on Restrictive Business Practices 1953.
- Set of multilaterally agreed equitable principles and rules for the control of restrictive business practices. UN Doc TD/RBP/CONF/IO (1980), approved in modified form by the General Assembly as Resolution 35/63.
- ICI v EEC Commission 48 ILR 106 (1969).
- The US v Aluminium Co of America (148 F 2d 416 (1945)) and US v Watchmakers of Switzerland Information Centre Inc 83 F Supp40 (1955)) were both very early decisions but appeared to restrict the claim of extraterratorial jurisdiction to cases where the agreement made abroad was intended to and did have effects within the US.
- Timberlane Lumber Co v Bank of America 549 F 2d 597 (9th Circuit, 1976) and Restatement (Third) Foreign Relations Law of the US para 401 (1987).
- Wallar, Extraterritorial application of US antitrust law: the effect of the US-EC antitrust agreement,33 HJIL 583.
- 617 F 2d 1248 (7th Circ, 1980).
- Canada: Uranium Information Security Regulations 1976. Australia: Foreign Proceedings Act No 121. UK: Protection of Trading Interests Act 1980.
- Rishikesh, Extraterritoriality v Sovereignty in international antitrust jurisdiction, 14 W Comp (1990–1) 3.
- [1985] 3 CMLR 474. Although the result of this case was overturned on appeal, the extraterritoriality was not.
- Council Reg EEC No 4064/89 (1989) OJ L395/1. The Regulation was applied to a Swiss/ Swedish merger in the case of Tetra Pak/Alfa Laval (1991) OJ L290/35.
- Recommendation concerning restrictive business practices affecting international trade of 5 June 1986, ILM (1986) 1629.
- For example, the US has made agreements with Canada, the UK and Australia; the Australia-New Zealand Closer Economic Relations Trade Agreement covers competition enforcement.
- US-EC Competition Laws Cooperation Agreement [1991] 4 CMLR 823.
- Article IV(2) sets out matters to be taken into account in deciding whether enforcement should be coordinated, when both parties have an interest in it; Article II (2) lists notifiable enforcement activities and II (3) lists times for notification.
- Article VI.
- Roth, Reasonable extraterritoriality: correcting the balance of interests, 41 ICLQ (1992) 245. In all there were 37 notifications in 1987–8 under such agreements.
- The US Department of Justice has, however, recently announced that it will sue companies whose anti-competitive behaviour affects US exports.
- Vermulst, A European Practitioner's view of the GATT system: should competition law violations distorting international trade be subject to GATT panels? 27(2) J World Trade (1993) 55.
- Article 1501 NAFTA, para 3.
- Lock, Removing barriers to competition in electricity production: the 1992 US legislation 3(2) ULR (1992) 87.
- Kuhne & Fox, Competition in network-bound energy systems, Energy Law ′90, 223.
- Ibid, p 249.
- Maters, supra note 63.
- Hancher and Lucas, supra note 60.
- Hancher, Creating a single European market for electricity and gas, 3(3) ULR (1992) 133.
- Jackson, The World Trading System: Law and Policy of International Economic Relations, 2nd ed (MIT Press, 1989).
- Article 5 (2).
- Article 5 (3).
- On the wording of the paragraph it does not appear that ‘relevant competition authorities’ are authorised to pass this information, and the discretion as to whether or not the grounds should be communicated is left solely to the Contracting Party.
- Regulation 17/1962 OJ 13/204.
- A case was brought by France to annul the US-EC Agreement on these and other grounds (Case C-327/91).
- UN Centre on Transnational Corporations, Bilateral Investment Agreements (1988 Graham & Trotman, London).
- For example, the Charter of the International Centre for the Settlement of Investment Disputes does not include any definition; although the First Draft (Working Paper prepared by staff of the World Bank (Doc 43) September 1964) contained a definition (any contribution of money or asset of economic value for an indefinite period of five or more years) agreement was never reached and it was eventually omitted. The Agreement establishing the EBRD (29 ILM (1990) 1077) does not as such define investment.
- Appendix 2, Shihata, MIGA and Foreign Investment (1988, Kluwer).
- Article 12.
- Article 1 (6).
- The 90th day after the day of deposit of the thirtieth instrument of ratification, acceptance or approval, or for later ratifying parties the 90th day after deposit of the instrument of ratification, acceptance, approval or accession: Article 49. Since the signatories agree to apply the Treaty provisionally following signature pending entry into force under Article 50, the provisions of Article 1 (6) are ambiguous during any such period.
- Leonard, Investment in the Soviet Union in the early nineties: diving into the vortex, 2 (1) Touro J Transnat Law [1991] 153.
- Dobosiewicz, Foreign investment in Eastern Europe (1991, Routledge).
- The Russian Federation, members of the CIS, The Czech Republic, The Slovak Republic, Hungary, Poland, Romania, Albania, Bulgaria, Estonia, Latvia, Lithuania and, presumably, the successor states to the former Yugoslavia.
- Defined in Article 1 (4) by reference to an Annex, based on the Harmonised System of the Customs Co-operation Council and the Combined Nomenclature of the EC.
- Distillation products of coal tar; charcoal; firewood; denatured spirits and alcohol; and alkenes.
- US V Fleet Factors Corp 901 F 2d 1550 (11th Cir, 23 May 1990).
- Bilateral Investment Agreements, supra, n 109.
- Brownlie, Principles of Public International Law, 4th edn (1990, Clarendon) pp 480 et seq.
- Barcelona Traction (Second Phase) ICJ Report (1970) 202.
- Parry, Nationality and citizenship laws of the Commonwealth (1957).
- Brownlie, supra n 122.
- Westburg and Marchais, General principles governing foreign investment as articulated in recent international tribunal awards and writings of publicists, 7(2) ICSID Review (1993) 453.
- Supra, note 10.
- Report to the Development Committee on the Legal Framework for the treatment of foreign investment, 7(2) ICSID Review (1993) 315.
- Johnson, Ranking countries for mineral exploration, 14 Nat Res Forum 3 (1990) 178.
- Bilateral Investment Agreements, supra, n 109.
- Resolution 1803 (XVII) of UN General Assembly, 1962, adopted by 87 votes to 2 with 12 abstentions.
- Over 300 out of 335 surveyed in 1991: Khalil, Treatment of foreign investment in bilateral investment treaties, 7(2) ICSID Review (1993) 339.
- Agreement among the Governments of Brunei Darussalam, The Republic of Indonesia, Malaysia, The Republic of the Philippines, The Republic of Singapore and the Kingdom of Thailand for the Promotion and Protection of Investments (1987).
- Supra note 57.
- Guideline 111:3.
- Khalil, supra n 132.
- Tschofen, Multilateral approaches to the treatment of foreign investment, 7(2) ICSID Review (1993) 384.
- Bilateral Investment Agreements, supra, n 109.
- The exception being the Rankin v Iran case, where anti-American actions by government officials were found to be inconsistent with the principle; case in Westburg, International transactions and claims involving government parties—case law of the Iran-US Claims Tribunal (1991).
- Bilateral Investment Agreements, supra, n 109.
- For example, Abs/Shawcross Draft Convention on Investments Abroad (1959) which provided the basis for the OECD Draft Convention on the Protection of Foreign Property (1967); not adopted.
- Bilateral Investment Agreements, supra, n 109.
- Ibid.
- Khalil, supra n 132.
- The Paris Convention for the Protection of Industrial Property of 1893 being the most relevant.
- Guideline II:5 (b).
- Folmer, Evolving relationships between energy companies and their host governments, Energy Law ′90, 32.
- Bilateral Investment Agreements, supra, n 109.
- Draft Final Act Embodying the Results of the Uruguay Round; GATT Doc MTN.TNC/W/FA December 1991.
- Ibid, Annex to Section N.
- Austria, Australia, Japan, Norway, Switzerland and the USA for example. Hayes, Foreign Direct Investment: will the Uruguay Round make a difference? (1990, RIIA Discussion Paper 25).
- Only one GATT Panel ruling has been handed down on TRIMs; [the Canadian Foreign Investment Regulation Act was found to be contrary to the GATT Article (GATT BISD 30 Supp 140)].
- War or other armed conflict, state of national emergency, civil disturbance or other similar event.
- Brownlie, supra n 122, pp 460 et seq.
- Ibid.
- It did not appear in UN Resolution 1803 on Permanent Sovereignty over Natural Resources, being replaced by a reference to international law.
- For example, BITs concluded by Jordan. Supra, n 109.
- None of the attempts to define this standard has met with universal approval and in fact when the formula “adequate, prompt and effective” is not used the terms “just” and “full” are more common. Khalil, supra n 132.
- Lauterpacht, Security of investment abroad: recent arbitral and judicial developments, principally on the question of compensation, Energy Law ′90, 471.
- Guideline 111:6 (4).
- PCIJ Series A No 17.
- Westburg and Marchais, supra n 126.
- Starren Housing Corp v Iran (1983) 4 Iran-US CT R 176; Phillips Petroleum v Iran (1989) 21 Iran-US CTR 7.
- Amoco International Finance Co v Iran (1987) 27 ILM 1314.
- Tschofen, supra n 137.
- These are reiterated in the World Bank Guidelines, but it is worthy of note that the UN General Assembly resolutions in this area do not require a public purpose: Tschofen, supra n 137.
- Defined in Article 1 (15) as one widely traded in international foreign exchanges and widely used in international transactions.
- Khalil, supra n 132.
- Guideline V: 1 and V:3.
- Supra note 145.
- Khalil, supra n 132.
- Khalil, supra n 132.
- Guideline III: 6(3).
- For example, the UNCTC Draft Code of Conduct, the GATT Draft Agreement on Trade in Services and the OECD Codes of Liberalisation of Current Invisible Operations and Capital Movements.
- In more than 60; payment of interest may be required. Khalil, supra n 132.
- Transnational corporations and world development, Fourth Survey (1988) UN Doc, ST/CTC/89.
- Bilateral investment agreements, supra, n 109.
- Touscoz, Inter-governmental mineral development agreements, in Legal and institutional arrangements in minerals development (Mining Books Ltd, 1982).
- Walde, Investment policies and investment protection in the mineral industries, 6 ICSID Review (1991) 94.
- Ibid.
- A total of more than 2,000 bilateral agreements would be needed to cover the OECD and Group of 77 countries, as opposed to the less than 300 in existence at the end of 1991. Bilateral Investment Agreements, supra, n 109.
- Khalil, supra, n 132.
- For example, the Exxon Valdez and Braer oil spills.
- For example, the contamination of a large swathe of Europe by radioactivity from the Chernobyl disaster.
- Fisher, Paradise deferred: environmental policy-making in Central and Eastern Europe, 1992 RIIA, London.
- UN Doc A/CONF/48/REV. 1, 1972.
- Affirmed by the UN General Assembly Resolution 2996 (XXVII) (1972), passed without opposition although the Eastern Bloc states abstained; reiterated in Principle 2 of the Rio Declaration on the Environment and Development, June 1992 (UNCED UN Doc A/CONF. 151/5 (1992). The early case on transboundary pollution, Trail Smelter (33 AJIL (1939) 182) established this rule.
- The GATT does allow an exception under Article XX for measures necessary to prevent harm to human, animal or plant life or health, see below.
- NAFTA's provisions on the environment and their relationship to the GATT are discussed in detail in McConnell, NAFTA: Trading Natural Resource Goods and Protecting the Environment, 12 JERL (1994) 1, 151.
- Our Common Future, World Commission on Environment and Development 1987.
- Grant, A European view of sustainable development, 9 (2) JERL (1991) 124.
- Hahn and Richards, The Internationalisation of environmental regulation, 30 (2) HILJ (1989).
- Birnie and Boyle, International Law and the Environment, Oxford 1992 at pp 123–4.
- Council of Europe Recommendation 1130 (1990) (1) (1 YIEL (1990) 484).
- Schwebel, Comment, Energy Law ′90, 542.
- World Bank and the Environment, IBRD, Washington 191. The International Development Agency also reports annually on the environmental impact of its activities: Shihata, The role of the EBRD in the promotion and financing of investment in Central and Eastern Europe: a legal analysis. 5 ICSID Review (1990) 207.
- Agreement establishing the EBRD, 29 ILM( 1990) 1077.
- This Fund, whose function will be the guaranteeing of loans made by the European Investment Bank, is in the process of being set up having been formally approved last year.
- Shorey, Financial implications of trends in EEC environmental policy (BJIB&FL (1990) 5 (12) 556.
- 30 ILM (1991) 735. Not yet in force.
- Brownlie, supra, note 122.
- Jennings, Hague Recueil des Cours (1967, II) 442. For recent discussion see Brownlie, supra n 122.
- Comprehensive Environmental Response and Civil Liability Act 1980, 42 USC para 9601–9675.
- 20 EPL (1990) 100.
- Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, 11 ILM( 1972) 1294, as amended.
- Birnie and Boyle, supra, n 193 at p 98.
- Ibid p 109.
- Principle 12.
- Principle 16.
- Fisher, supra n 185.
- Van der Linde, supra, note 7.
- Fisher, supra n 185.
- Birnie and Boyle, supra n 193.
- UN Conference on the Law of the Sea is exceptional in this.
- Petersmann, International trade law and international environmental law—prevention and settlement of international disputes in GATT (27 (1)J World Trade (1993) 43.
- GATT Panel Report on US restrictions on the import of tuna, 30 ILM (1991) 1598.
- Kisiri, International trade and the environment: an additional non-tariff barrier? 15 (3) W Comp (1991) 75.
- Petersmann, supra n 215.
Journal of Energy & Natural Resources Law
Volume 12, 1994 - Issue 3