Académique Documents
Professionnel Documents
Culture Documents
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* Legal Counsel, Energy Charter Secretariat. L.L.M. in International Legal Studies, New
York University School of Law. L.L.B., The University of Tokyo. The author has co-written this
Article in her personal capacity. This Article does not necessarily reflect the views of the Energy
Charter Secretariat or those of the Energy Charter Treaty Contracting Parties, Signatories, or
Observers. The author has made no attempt in this Article to define the legal status of the
Russian Federation in relation to the Energy Charter Treaty.
** Associate, Squire Sanders (US) LLP, Tokyo, Japan. L.L.M. in International and
Comparative Law / J.D., Cornell Law School. The author has co-written this Article in his
personal capacity. This Article does not necessarily reflect the views of Squire Sanders (US)
LLP.
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B. Why Chinas Joining the ECT Would Benefit China ............ 138
1. ECT Investment Provisions ............................................... 138
a. Protection Against Appropriation.............................. 138
b. Fair and Equitable Treatment..................................... 138
c. Prohibition of Unreasonable or Discriminatory
Treatment ...................................................................... 139
d. Most Favored Nation and National Treatment......... 139
2. Counterbalancing Russias Soft Power in Central Asia .. 140
C. Costs to China in Relation to Chinas Acceding to the
ECT ............................................................................................. 140
1. Dispute Settlement .............................................................. 140
2. Transit ................................................................................... 141
3. Energy Efficiency ................................................................ 141
V. THE BENEFITS OBTAINED BY CHINA BY JOINING THE ECT
OUTWEIGH THE COSTS..................................................................... 142
I.
INTRODUCTION
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Treaty (ECT).6 The ECT and the Energy Charter Protocol on Energy
Efficiency and Related Environmental Aspects (PEEREA) were signed
in December 1994 and entered into legal force in April 1998.7 The aim of
the ECT and the PEEREA is to strengthen the rule of law on energy
issues by creating a set of rules to be observed by all participating parties,
thereby mitigating risks associated with energy-related investment and
trade, specifically regarding the cross-border transportation of energy
resources.8
Russia signed the ECT in 1994 and, without ratifying it, applied the
ECT provisionally until 2009, when it announced that it would no longer
apply the treaty.9 In 2001, China became an observer of the Energy
Charter Conference, the decision-making body under the ECT, but has
yet to become a Contracting Party10 of the ECT. Kazakhstan,
Turkmenistan, Uzbekistan, and other Central Asian states are
Contracting Parties.11 China acceding to the ECT after Russia has left by
terminating its provisional application would mean a step towards
becoming a meaningful partner in the development of Central Asia as
opposed to a mere financier, which would help to counterbalance
Russias soft power in Central Asia. There are a few costs that China
would face by acceding to the treaty, including being subject to dispute
settlement by a few Central Asian states that are not already World
Trade Organization (WTO) members, enabling investors to use
international arbitration, and needing to adhere to certain environmental
rules and regulations. These insignificant costs, however, would be more
than outweighed by China being able to secure its investments and build
a bridge for further progress with its Central Asian partners.
This Article argues that acceding to the ECT is in Chinas best interest
because the costs to China in acceding to the ECT would be outweighed
by the benefits. China would secure profitable, lasting relationships with
hydrocarbon-producing states in Central Asia through membership in the
ECT. Membership would demonstrate Chinas commitment to engage as
6. Energy Charter Secretariat, 1994 Treaty, ENERGY CHARTER, http://www.encharter.org/
index.php?id=28 (last visited Nov. 4, 2012).
7. Id.
8. Id.
9. Energy Charter Secretariat, Members & ObserversRussia, ENERGY CHARTER,
http://www.encharter.org/index.php?id=414&L=0#c1338 (last visited Nov. 4, 2012); Russia PM
Putin Rejects International Energy Charter, REUTERS (Aug. 6, 2009), http://in.reuters.com/
article/2009/08/06/russia-energy-charter-idINL639469220090806.
10. See Energy Charter Secretariat, Members & Observers, ENERGY CHARTER,
http://www.encharter.org/index.php?id=61 (last visited Nov. 4, 2012) (listing China as an
observer to the Energy Charter Conference); Energy Charter Treaty art. 1, Dec. 17, 1994, 2080
U.N.T.S. 100 [hereinafter ECT] (a Contracting Party is a state or a regional economic
integration organization that has agreed to be bound by the ECT and for which the ECT is in
force).
11. See Energy Charter Secretariat, Members & Observers, supra note 10 (listing
Kazakhstan, Turkmenistan, Uzbekistan, and other Central Asian states as Contracting Parties).
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China likely will seek to import the oil and gas that it needs from
Central Asia. Central Asian oil and gas exports are expected to more
than double by 2036, with Kazakhstan mostly exporting oil and
Turkmenistan mostly exporting gas.27 Especially in light of the various
territorial and sea lane disputes in which China is involved,28 China
should seek to import its needed hydrocarbon resources through secure
pipelines rather than solely through oil or LNG shipments. Therefore,
China should seek to create a lasting, mutually beneficial relationship
with the Central Asian states to secure its future energy needs.
B. Russias Domination of Central Asian Hydrocarbon Resources
Russian culture, language, and values are instilled in Central Asia.29
Prior to and during the Soviet Union, Russia united the Central Asian
states under Russian-imposed ideals.30 Top political leaders, academics,
and business people from all Central Asian states, who each had varying
individual ethnic, linguistic, and cultural backgrounds, bowed to Russia as
a way to increase prosperity for themselves and their nations.31 In effect,
all Central Asian states were tied vertically to Russia and did not create
strong bonds horizontally with each other.32
The collapse of the Soviet Union highlighted the lack of horizontal
connections among the Central Asian states, especially in the realm of
transportation infrastructure.33 Central Asian states emerged from the
Soviet Union bound by inefficient arrangements that benefited Russia:
rail, river, and air transport were linked with Russia and nowhere else,
and all oil and gas infrastructure, including all pipelines, ran to Russia.34
At the time of the collapse of the Soviet Union, the only outlet for
hydrocarbon resources from Central Asia was via Russian territory and
through state-controlled Russian pipelines.35 Russia used this position of
27. See Caspian Oil and Gas Exports are Poised for Take-Off, INTL ENERGY AGENCY (Mar.
15, 2011), http://www.iea.org/index_info.asp?id=1881.
28. See, e.g., HONGYI LAI, ASIAN ENERGY SECURITY: THE MARITIME DIMENSION (2009).
29. See, e.g., CENTRAL ASIA: ONE HUNDRED THIRTY YEARS OF RUSSIAN DOMINANCE, A
HISTORICAL OVERVIEW (Edward A. Allworth ed., Duke Univ. Press, 3d ed. 1994) (1967)
[hereinafter RUSSIAN DOMINANCE].
30. See, e.g., id.
31. See, id. See generally OLIVER ROY, THE NEW CENTRAL ASIA: THE CREATION OF
NATIONS (2000).
32. See THE TRANSFORMATION OF CENTRAL ASIA: STATES AND SOCIETIES FROM SOVIET
RULE TO INDEPENDENCE 24748 (Pauline Jones Luong ed., 2004) [hereinafter THE
TRANSFORMATION OF CENTRAL ASIA]; Edward C. Chow & Leigh E. Hendrix, Central Asias
Pipelines: Field of Dreams and Reality, in 23 NATL BUREAU OF ASIAN RES., NBR SPECIAL
REP. 29, 31 (2010), available at http://csis.org/files/publication/1009_EChow_LHendrix_
CentralAsia.pdf.
33. See THE TRANSFORMATION OF CENTRAL ASIA, supra note 32; Chow & Hendrix, supra
note 32, at 31.
34. Chow & Hendrix, supra note 32, at 31.
35. For example, refineries in eastern Kazakhstan processed West Siberian crude oil then
shipped the oil to Samara, Russia, and states such as Azerbaijan received the oil from Russia
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54. PETERSEN & BARYSCH, supra note 37, at 29; Nichol, Woehrel & Gelb, supra note 53, at
CRS2.
55. PETERSEN & BARYSCH, supra note 37, at 29; Richard B. Andres & Michael Kofman,
European Energy Security: Reducing Volatility of Ukraine-Russia Natural Gas Prices, NATL
DEF. U. STRATEGIC F. 6 (Feb. 2011), available at http://www.dtic.mil/dtic/tr/fulltext/u2/
a545411.pdf; Q&A: Russia-Ukraine Gas Row, BBC NEWS (Jan. 20, 2009),
http://news.bbc.co.uk/2/hi/europe/7240462.stm.
56. Simon Pirani, Jonathan Stern & Katja Yafimava, The Russo-Ukrainian Gas Dispute of
January 2009: A Comprehensive Assessment, OXFORD INST. FOR ENERGY STUD. 10 (Feb. 2009),
available at http://www.oxfordenergy.org/wpcms/wp-content/uploads/2010/11/NG27-TheRusso
UkrainianGasDisputeofJanuary2009AComprehensiveAssessment-JonathanSternSimonPiraniK
atjaYafimava-2009.pdf; Chow & Hendrix, supra note 32, at 35.
57. See Robert M. Cutler, Moscow and Ashgabat Fail to Agree over the Caspian Coastal
Pipeline, CENT. ASIA-CAUCASUS INST. (Apr. 8, 2009), http://cacianalyst.org/?q=node/5080.
58. Cutler, supra note 57; Kazakhstan, Russia and Turkmenistan Agree to Renovate the
Caspian Gas Pipeline, GOVT OF THE REPUBLIC OF KAZ., http://en.government.kz/site/news/
052007/16 (last visited Dec. 12, 2011); Sbastien Peyrouse, Economic Aspects of the ChineseCentral Asia Rapprochement, CENT. ASIA-CAUCASUS INST. 6869 (Sept. 2007), available at
http://www.silkroadstudies.org/new/docs/Silkroadpapers/2007/0709China-Central_Asia.pdf.
59. Chow & Hendrix, supra note 32, at 35.
60. Chow & Hendrix, supra note 32, at 35; Pre-Caspian Gas Pipeline, GAZPROM,
http://www.gazprom.com/about/production/projects/pipelines/pg/ (last visited July 17, 2012).
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67. Construction on Third Line Begins For Central Asia-China Gas Pipeline, PIPELINES
INTERNATIONAL (Mar. 2012), http://pipelinesinternational.com/news/construction_on_third_
line_begins_for_central_asia-china_gas_pipeline/066998/.
68. Socor, supra note 66; Charlotte Owen, 30 BCM Passes Through Turkmenistan-China
Pipeline, OIL & GAS TECH. (June 6, 2012), http://www.oilandgastechnology.net/pipelines/30bcm-passes-through-turkmenistan-china-pipeline.
69. Line Cs Uzbekistan Section of Central Asia-China Gas Pipeline Starts Construction,
CHINA NATL PETROL. CORP. (Dec. 16, 2011), http://www.cnpc.com.cn/en/press/newsreleases/
Line_Cs_Uzbekistan_section_of_Central_AsiaChina_Gas_Pipeline_starts_construction_.htm;
Socor, supra note 66.
70. Id.
71. Trunk line of Second West-East Gas Pipeline, the worlds longest, begins operation,
CHINA NATL PETROL. CORP., http://www.cnpc.com.cn/en/press/Features/Trunk_Line_of_the_
Second_WestEast_Gas_Pipeline_begins_operation.htm (last visited Dec. 7, 2011).
72. Natural Gas Arrives at Guangdong from Turkmenistan, supra note 3.
73. Hong Kong Branch of Second West-East Gas Pipeline Starts Construction, CHINA NATL
PETROL. CORP. (Mar. 5, 2012), http://www.cnpc.com.cn/en/press/newsreleases/Hong_Kong_
branch_of_Second_WestEast_Gas_Pipeline_starts_construction.htm.
74. Joint Stock and Cooperation Framework Agreement Signed on the Third West-East Gas
Pipeline, CHINA NATL PETROL. CORP. (May 31, 2012), http://www.cnpc.com.cn/en/press/
newsreleases/Joint_stock_and_cooperation_framework_agreement_signed_on_the_Third_West
East_Gas_Pipeline.htm.
75. Natural Gas Arrives at Guangdong from Turkmenistan, supra note 3.
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2010, will also transit gas to China.76 The pipeline will go into operation in
two phases and eventually will provide 10 BCM/y to 15 BCM/y of gas
when both phases are completed by 2013 and 2015, respectively.77
Aside from the CACGP, CNPC is extremely active in the Kazakhstani
energy sector.78 For example, after acquiring a 60.3% stake in
AktobeMunaiGasthe fourth-largest oil company in Kazakhstanin
June 1997, and obtaining a further 25.12% in May 2003, CNPC now holds
85.42% of the companys shares.79 AktobeMunaiGas has production
licenses for the Zhanazhol, Kenkiyak Oversalt, and Kenkiyak Subsalt oil
fields and a contract for an exploration block in Kazakhstan.80 After
taking over AktobeMunaiGas, CNPC invested over $1.5 billion in
building production, storage, and transportation facilities, and in
reconstructing an existing oil and gas processing plant as well as building
a new one.81 These substantial efforts and investments have been met
with promising results; CNPC and AktobeMunaiGas Corp. obtained
high-yield oil flows from various exploration projects in Kazakhstan in
2007.82
Additionally, CNPC acquired PetroKazakhstan in October 2005, and
in accordance with an agreement reached with the Kazakhstan Ministry
of Energy and Mineral Resources, transferred 33% of its shares in
PetroKazakhstan to KazMunaiGazthe Kazakhstan state-owned oil and
gas companyin July 2006, retaining the remaining 67% stake.83 CNPCs
acquisition of PetroKazakhstan allowed CNPC to obtain ownership of
numerous oilfields and licenses in relation to several exploration blocks.84
In December 2005, the first stage of the Kazakhstan-China Oil
Pipeline was completed, stretching 962 kilometers from Atasu in
Kazakhstan to Xinjiang in China.85 In July 2009, China and Kazakhstan
completed a 792-kilometer extension of the oil pipeline to the far west of
Kazakhstan, reaching the Caspian Sea.86 The output of the pipeline is set
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to double by 2013.87
3. Uzbekistani Hydrocarbons
CNPC currently operates two different oil and gas cooperation
projects in Uzbekistan.88 CNPC signed a production-sharing contract in
August 2006, which provided for exploration and development of oil and
gas deposits in 12,000 square kilometers of the Uzbekistan area of the
Aral Sea with a consortium comprising of CNPC, Uzbekistans
Uzbekneftegaz, Russias Lukoil, Malaysias Petronas, and South Koreas
Korea National Oil Corporation.89 This was in addition to the oil and gas
exploration agreement that CNPC signed with Uzbekistan National
Oil/Gas Group Corporation in June 2006, which covered five land
exploration blocks covering a total area of 34,000 square kilometers in
Uzbekistan.90
4. Pressure on Russia
China used its economic strength to extend a bridge into Central
Asia.91 The CACGP struck an economic blow to Russia.92 The CACGP
was the rst, and so far is the only, major international gas pipeline to
break Russias stranglehold on Central Asian gas transport.93 It was also
Chinas rst major gas import pipeline.94 China offered Central Asian
states loans for economic stimulus and energy investments during the
recent global nancial crisis to further expand its influence in Central
Asia.95 Specifically, China loaned $10 billion to Kazakhstan in April 2009
in return for certain ownership rights of a large Kazakhstani oil
producer.96 A few months later, China announced it was making a $10
operational.htm; China, Kazakhstan Agree on Sino-Kazakh Oil Pipeline Extension to Caspian
Sea, EMBASSY OF THE REPUBLIC OF KAZ., http://www.kazakhembus.com/archived_article/chinakazakhstan-agree-on-sino-kazakh-oil-pipeline-extension-to-caspian-sea (last visited Apr. 19,
2012).
87. Lucy Hornby & Chen Aizhu, China, Kazakh Pipeline Expansion on Hu Visit Agenda,
REUTERS (June 4, 2010), http://in.reuters.com/article/2010/06/04/china-kazakhstan-pipelineidINTOE65307A20100604.
88. CNPC in Uzbekistan, CHINA NATL PETROL.CORP., http://www.cnpc.com.cn/en/
cnpcworldwide/Uzbekistan/ (last visited Jan. 3, 2013).
89. Id.
90. Id.
91. See PETERSEN & BARYSCH, supra note 37, at 40.
92. See id. at 43; see also Fabio Indeo, Russia and China in Central Asia: Growing
Geopolitical Competition, ISTITUTO PER GLI STUDI DI POLITICA INTERNAZIONALE, Oct. 2010,
at 1, 7, available at http://www.ispionline.it/it/documents/PB_199_2010.pdf.
93. PETERSEN & BARYSCH, supra note 37, at 42.
94. See id.; China Trumps Russia in Turkmen Gas Buy, OIL & GAS EURASIA (Dec. 14, 2009),
http://www.oilandgaseurasia.com/tech_trend/china-trumps-russia-turkmen-gas-buy.
95. PETERSEN & BARYSCH, supra note 37, at 42.
96. Eugene Tang, China, Kazakhstan Sign $10 Billion Loan-for-Oil Agreements,
BLOOMBERG (Apr. 16, 2009), http://www.bloomberg.com/apps/news?pid=newsarchive&sid=
aRkoxDWplmJY.
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97. A non-governmental organization that seeks to address political and economic issues in
Central Asia, China, and Russia, composed of China, Russia, Kazakhstan, Kyrgyzstan,
Tajikistan and Uzbekistan. Backgrounder: Shanghai Cooperation Organization, SHANGHAI
COOPERATION ORG. SUMMIT 2012 (Jun. 7, 2010), http://www.scosummit2012.org/english/201006/07/c_13337029.htm. See generally Chien-Peng Chung, Chinas Approaches to the
Institutionalization of Regional Multilateralism, 17 J. OF CONTEMP. CHINA 747 (2008).
98. China to Provide 10-Billion-Dollar Loan to SCO Members, XINHUA (June 16, 2006),
http://news.xinhuanet.com/english/2009-06/16/content_11552439.htm.
99. China in Central Asia: Riches in the Near Abroad, ECONOMIST (Jan. 28, 2010),
http://www.economist.com/node/15393705.
100. China Lends Turkmenistan $4.1B in Return for Future Gas, CENT. ASIA NEWSWIRE
(Apr. 27, 2011), http://www.universalnewswires.com/centralasia/viewstory.aspx?id=3923.
101. Isabel Gorst, Russia Welcomes End to Turkmen Gas Dispute, FIN. TIMES (London)
(Dec. 23, 2009), http://www.ft.com/intl/cms/s/0/20dfe82e-ef69-11de-86c4-00144feab49a.html.
102. Gazprom Pays More for Turkmen Gas Business International Herald Tribune, N.Y.
TIMES (Sept. 5, 2009), http://www.nytimes.com/2006/09/05/business/worldbusiness/05ihtgazprom.2700002.html. In 2006, Turkmenistan sold most of its gas to Russia at not much more
than $50 per 1,000 cubic meters. In early 2009 it sold its exports at the European price of over
$300 per 1,000 cubic meters. China Trumps Russia in Turkmen Gas Buy, supra note 94.
103. Gorst, supra note 101.
104. Sergei Blagov, Russia Struggles to Revive Energy Ties With Turkmenistan, EURASIA
DAILY MONITOR (D.C.) (Dec. 15, 2009, 8:28 PM), http://www.jamestown.org/programs/edm/
single/?tx_ttnews%5Btt_news%5D=35839&tx_ttnews%5BbackPid%5D=485&no_cache=1.
105. Id.
106. Deidre Tynan, Turkmenistan: Gas Flows Again to Russia, While Discontent Simmers,
EURASIANET.ORG (Jan. 13, 2010, 7:00 PM), http://www.eurasianet.org/departments/insight/
articles/eav011410.shtml.
107. Blagov, supra note 104.
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108. Gorst, supra note 101; China in Central Asia: Riches in the Near Abroad, supra note 99.
109. See, e.g., RUSSIAN DOMINANCE, supra note 29.
110. Turkmenistan Ends Building its Gas Pipeline Section to China, PJSC STROYTRANSGAZ
(Oct. 23, 2009), http://www.stroytransgaz.com/press-center/smi/itar-tass/2009_10_23.
111. See Chow & Hendrix, supra note 32, at 38 (arguing that [t]he Russian attitude seems to
be, if Central Asian gas is to be exported by a route other than Russia, it is better for the gas to
go east than west, where it would compete against Russian gas in its primary European
market.) (citing Marat Gurt, Russian Company Wins Turkmenistan Pipeline Tender, REUTERS
(Feb. 19, 2008), available at http://in.reuters.com/article/2008/02/19/turkmenistan-chinaidINL194546920080219).
112. Cf. Igor Danchenko et al., One Step Forward, Two Steps Back? The Realities of a Rising
China and Implications for Russias Energy Ambitions, BROOKINGS, Aug. 2010, available
at http://www.brookings.edu/~/media/Research/Files/Papers/2010/8/china%20russia%20energy
%20downs%20hill/08_china_russia_energy_downs_hill.pdf
(describing
Chinas
growing
dominance in the energy transit sector and possible responses by Russia).
113. See, e.g., id.; Henry J. Kenny, China and the Competition for Oil and Gas in Asia, 11
ASIA-PACIFIC REV. 36 (2004); Stephen J. Blank, The Eurasian Energy Triangle: China, Russia,
and the Central Asian States, 12 BROWN J. WORLD AFF. 53 (2005).
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the ECT to protect their investments and secure the supply of energy
resources.130 All countries benefit from the ECTs measures to encourage
the efficiency of energy production and use and to minimize related
negative environmental impacts.131 China became an Observer of the
Energy Charter Conference, the decision-making body for issues related
to the ECT,132 on December 17, 2001.133 Observers have the right to
attend all meetings of the Energy Charter Conference and of its
subsidiary groups, and receive all related documentation, reports, and
analyses, as well as to participate in the working debates that take place
within the Energy Charter process.134
Russia signed the ECT in 1994 but has never ratified it to date. Russia
agreed to provisional application of the ECT and PEEREA pending
ratification when it signed the treaty.135 However, this provisional
application ended on October 18, 2009, in accordance with Article
45(3)(a) of the ECT, after Russias notification to the Depository on
August 20, 2009 that it did not intend to become a Contracting Party.136
Although not subject to the provisional application of the ECT or
PEEREA, Russia still has an obligation to adhere to the provisions of the
ECT regarding investment protection and dispute settlement in relation
to investments made in its territory on, or prior to, October 18, 2009.137
The ECT focuses on four main areas: (1) protecting foreign
investments against key non-commercial risks, based on the extension of
national treatment (NT) or most-favored nation (MFN) treatment
(whichever is more favorable); (2) providing non-discriminatory
conditions for trade in energy materials and products, as well as energyrelated equipment where applicable, based on WTO rules to ensure
reliable cross-border energy transit flows through pipelines, grids, and
other means of transportation; (3) resolving disputes between
Contracting Parties, and, in the case of investments, between investors
and host states; and (4) promoting energy efficiency and minimizing
harmful environmental impacts.138
If a Contracting Party fails to amicably settle a dispute concerning its
alleged breach of the ECTs investment protection provisions or the
130. Id.
131. Id.
132. See ECT, supra note 10, art. 34.
133. Energy Charter Secretariat, Members & Observers, China, ENERGY CHARTER, supra
note 10.
134. Energy Charter Secretariat, Frequently Asked Questions, supra note 129.
135. See ECT, supra note 10, art. 45(1); Energy Charter Secretariat, Members & Observers,
Russia, supra note 10.
136. Energy Charter Secretariat, Frequently Asked Questions, supra note 129; see ECT,
supra note 10, art. 45(3)(a); Energy Charter Secretariat, Members & Observers, Russia, supra
note 9.
137. ECT, supra note 10, art. 45(3)(b).
138. Energy Charter Secretariat, 1994 Treaty, supra note 6.
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149. ECT, supra note 10, art. 7(7)(b); Energy Charter Secretariat, Frequently Asked
Questions, supra note 129.
150. ECT, supra note 10, pmbl.
151. Id. art. 2.
152. Energy Charter Secretariat, Frequently Asked Questions, supra note 129.
153. Id.
154. ECT, supra note 10, art. 7(1), (5).
155. ENERGY CHARTER SECRETARIAT, supra note 143, at 29.
156. Energy Charter Secretariat, Frequently Asked Questions, supra note 129.
157. Id.
158. Energy Charter Secretariat, Transit Protocol, ENERGY CHARTER, http://www.encharter.
org/index.php?id=37&L=0 (last visited Aug. 6, 2012).
159. Id.
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131
at its 22nd Meeting, held on November 29, 2011.160 If the negotiations are
reset and the Transit Protocol is finalized, it could significantly impact
hydrocarbon resource transport arrangements in Central Asia.
B. PEEREA
Article 19 of the ECT requires each Contracting Party to strive to
minimize, in an economically efficient manner, harmful environmental
impacts arising from energy use.161 The PEEREA was negotiated, opened
for signature, and entered into force at the same time as the ECT, April
16, 1998.162 The PEEREA requires its participating states and regional
economic integration organizations to formulate clear policy aims for
improving energy efficiency and reducing the energy cycles negative
environmental impact.163 In relation to the PEEREA, the Energy Charter
process provides Contracting Parties with information regarding good
environmental practices and a forum in which they can exchange
dialogue on experiences and policy advice on energy efficiency issues. At
this forum, the parties to the PEEREA are encouraged to highlight some
aspects of national energy efficiency strategies, such as taxation, pricing,
environment-related subsidies, and other mechanisms to finance energy
efficiency objectives.164
C. Trade Amendment
The ECTs trade provisions, which were initially based on the trading
regime of the General Agreement on Tariffs and Trade (GATT), were
modified by the adoption in April 1998 of a set of amendments (Trade
Amendment) to the ECT to bring the provisions into line with the rules
and practices of the WTO, particularly the principles of transparency and
non-discrimination.165 In addition, the Trade Amendment extended the
ECTs trade rules to energy-related equipment, such as pipeline pipes,
turbines, furnaces, etc., and thus, it ensures that investors will have access
to equipment of their choice on a non-discriminatory basis, both in terms
of MFN treatment and NT.166 It is not mandatory for Contracting Parties
to the ECT to also accede to the Trade Amendment.167
160. Id.
161. ECT, supra note 10, art. 19(1).
162. Energy
Charter
Secretariat,
Energy
Efficiency,
ENERGY
CHARTER,
http://www.encharter.org/index.php?id=37&L=0 (last visited Aug. 6, 2012).
163. Energy Charter Secretariat, 1994 PEEREA, ENERGY CHARTER, http://www.encharter.
org/index.php?id=27&L=0 (last visited May 6, 2012).
164. Id.
165. Energy Charter Secretariat, 1998 Trade Amendment, ENERGY CHARTER,
http://www.encharter.org/index.php?id=26&L=0 (last visited Jan. 12, 2013).
166. ENERGY CHARTER SECRETARIAT, supra note 143, at 15.
167. See Energy Charter Secretariat, Status of Ratification of the Trade Amendment
to the Energy Charter Treaty as of August 2012, ENERGY CHARTER, http://www.encharter.
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an ad hoc arbitral tribunal186 for disputes other than those related to the
amount of compensation for expropriation.187 In contrast, in the BITs
June 27, 1989, available at http://unctad.org/sections/dite/iia/docs/bits/china_bulgaria.pdf
[hereinafter Bulg.-China]; Agreement Between the Government of the Peoples
Republic of China and the Government of the Republic of Croatia Concerning the
Reciprocal Encouragement and Protection of Investments, China-Croat., June 7,
1993, available at http://unctad.org/sections/dite/iia/docs/bits/china_croatia.pdf [hereinafter
China-Croat.]; China and Denmark Agreement Concerning the Encouragement and
Reciprocal Protection of Investments, China-Den., Apr. 29, 1985, available at
http://unctad.org/sections/dite/iia/docs/bits/china_denmark.pdf [hereinafter China-Den.]; The
Government of the Peoples Republic of China and the Government of Estonia, China-Est.,
Sept. 2, 1993, available at http://unctad.org/sections/dite/iia/docs/bits/china_estonia.pdf
[hereinafter China-Est.]; Agreement Between the Government of the Peoples Republic of
China and the Government of the Republic of Georgia Concerning the Reciprocal
Encouragement and Protection of Investments, China-Geor., June 3, 1993, available at
http://unctad.org/sections/dite/iia/docs/bits/china_georgia.pdf
[hereinafter
China-Geor.];
Agreement Between the Government of the Peoples Republic of China and the Government of
the Hellenic Republic for the Encouragement and Reciprocal Protection of Investments, ChinaGreece, June 25, 1992, available at http://unctad.org/sections/dite/iia/docs/bits/china_greece.pdf
[hereinafter China-Greece]; Agreement Between the Republic of Hungary and
the Peoples Republic of China Concerning the Encouragement and Reciprocal
Protection
of
Investments,
Hung.-China,
May
29,
1991,
available
at
http://unctad.org/sections/dite/iia/docs/bits/china_hungary.pdf
[hereinafter
Hung.-China];
Agreement Between the Republic of Lithuania and the Peoples Republic of China Concerning
the Encouragement and Reciprocal Protection of Investments, Lith.-China, Nov. 8, 1993,
available at http://unctad.org/sections/dite/iia/docs/bits/china_lithuania.pdf [hereinafter Lith.China]; Agreement Between the Government of the Peoples Republic of China and the
Government of the Mongolian Peoples Republic Concerning the Encouragement and
Reciprocal Protection of Investments, China-Mong., Aug. 26, 1991, available at
http://unctad.org/sections/dite/iia/docs/bits/china_mongolia.pdf [hereinafter China-Mong.]; PRC,
Norway Agreement on Mutual Protection of Investments, China-Nor., Nov. 21, 1984, available
at http://unctad.org/sections/dite/iia/docs/bits/china_norway.pdf; Agreement Between the
Government of the Peoples Republic of China and the Government of the Polish Peoples
Republic Concerning the Reciprocal Promotion and Protection of Investments, China-Pol., June
7, 1998, available at http://unctad.org/sections/dite/iia/docs/bits/china_poland.pdf [hereinafter
China-Pol.]; Agreement on the Mutual Protection of Investments, China-Swed., Mar. 29, 1982,
available at http://unctad.org/sections/dite/iia/docs/bits/china_sweden.pdf [hereinafter ChinaSwed.]; Agreement Between the Peoples Republic of China and the Republic of Turkey
Concerning the Reciprocal Promotion and Protection of Investments, China-Turk., Nov. 13,
1990, available at http://unctad.org/sections/dite/iia/docs/bits/china_turkey.pdf.
186. Some of Chinas bilateral investment treaties (BITs) do not provide any investor-state
dispute settlement mechanism. E.g., Hung.-China, supra note 185; China-Pol., supra note 185;
Agreement Between the Government of the United Kingdom of Great Britain and Northern
Ireland and the Government of the Peoples Republic of China Concerning the Promotion and
Reciprocal Protection of Investments with Exchanges of Notes, U.K.-China, May 15, 1986,
available at http://unctad.org/sections/dite/iia/docs/bits/uk_china.pdf [hereinafter U.K.-China].
Other of Chinas BITs provide that either party to the investment dispute may resort to domestic
court proceedings. E.g., China-Alb., supra note 185, art. 8(2); Austl.-China, supra note 185, art.
XII(2)(a); China-Croat., supra note 185, art.8(2).
187. China-Alb., supra note 185, art. 8(3); Austl.-China, supra note 185, art. XII(2)(b) (when
both parties agree, disputes in general may also be submitted to ad hoc arbitral tribunal); ChinaCroat., supra note 185, art. 8(3); China-Den., supra note 185, art. 8(3); China-Est., supra note
185, art. 8(3); China-Geor., supra note 185, art. 9(3); China-Greece, supra note 185, art. 10(2)
(when both parties agree, investment disputes in general may also be submitted to ad hoc
arbitral tribunal); Hung.-China, supra note 185, art. 10(1); Agreement Between the Government
of the Peoples Republic of China and the Republic of Iceland Concerning the Promotion
and Reciprocal Protection of Investments, China-Ice., Mar. 31, 1994, available at
http://unctad.org/sections/dite/iia/docs/bits/china_iceland.pdf, art. 9(3); Lith.-China, supra note
185, art. 8(2)(b) (referring disputes to the International Centre for Settlement of Disputes
(ICSID) rather than to ad hoc arbitral tribunals, and when both parties agree, investment
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disputes in general may also be submitted to the ICSID); China-Mong., supra note 185, art. 8(3);
China-Pol., supra note 185, art. 10(1); Agreement Between the Government of the Peoples
Republic of China and the Government of the Republic of Slovenia Concerning the
Encouragement and Reciprocal Protection of Investments, China-Slovn., art. 8(3), Sept. 13,
1993, available at http://unctad.org/sections/dite/iia/docs/bits/china_slovenia.pdf; U.K.-China,
supra note 186, art.7(1).
188. Agreement Between the Peoples Republic of China and Bosnia and Herzegovina on
the Promotion and Protection of Investments, China-Bosn. & Herz., arts. 3(1), 8(2), June 26,
2002, available at http://unctad.org/sections/dite/iia/docs/bits/china_bosnia.pdf [hereinafter
China-Bosn. & Herz.] (disputes are referred to the ICSID rather than to an ad hoc arbitral
tribunal); Agreement Between the Czech Republic and the Peoples Republic of China on the
Promotion and Protection of Investments, Czech-China, arts. 3(1), 3(2), 9(2)(c), Dec. 8, 2005,
available at http://unctad.org/sections/dite/iia/docs/bits/China_czechrep.pdf [hereinafter CzechChina]; Agreement on the Encouragement and Reciprocal Protection of Investments
Between the Government of Republic of Finland and the Government of the
Peoples Republic of China, Fin.-China, arts. 3(2), 9(2)(c), Nov. 15, 2004, available
at
http://unctad.org/sections/dite/iia/docs/bits/china_finland.pdf
[hereinafter
Fin.-China];
Agreement Between the Peoples Republic of China and the Federal Republic of Germany on
the Encouragement and Reciprocal Protection of Investments, China-Ger., arts. 3(2), 9(3), Dec.
1, 2003, available at http://unctad.org/sections/dite/iia/docs/bits/china_germany.pdf [hereinafter
China-Ger.]; Agreement Between the Government of the Peoples Republic of China and the
Government of the Republic of Latvia on the Encouragement and Reciprocal
Protection of Investments, China-Lat., arts. 3(2), 9(2)(b) Apr. 15, 2004, available at
http://unctad.org/sections/dite/iia/docs/bits/China_Latvia.pdf (disputes are referred to the ICSID
rather than to an ad hoc arbitral tribunal); Agreement on the Encouragement and Reciprocal
Protection of Investments Between the Government of the Peoples Republic of China and the
Government of the Kingdom of the Netherlands, China-Neth., arts. 3(3), 10(3)(b), Nov. 26, 2001,
available at http://unctad.org/sections/dite/iia/docs/bits/china_netherlands.pdf [hereinafter ChinaNeth.]; Agreement between the Government of the Russian Federation and the Government of
the Peoples Republic of China on the Promotion and Reciprocal Protection
of Investments, Rus.-China, arts. 3(2), 9(2)(c), Nov. 9, 2006, available at
http://unctad.org/sections/dite/iia/docs/bits/russia_china_ru.pdf; Agreement Between the Swiss
Federal Council and the Government of the Peoples Republic of China on the Promotion and
Reciprocal Protection of Investments, Switz.-China, arts. 4(2), 11(2)(b), Jan. 27, 2009, available
at http://unctad.org/sections/dite/iia/docs/bits/Switzerland_China_new.pdf [hereinafter Switz.China].
189. See China-Ger., supra note 188 (renegotiated BIT signed on Dec. 1, 2003, replacing the
previous BIT signed on Oct. 7, 1983); Total Number of Bilateral Investment Agreements
Concluded, supra note 178.
190. See China-Neth., supra note 188 (renegotiated BIT signed on Nov. 26, 2001, replacing
the previous BIT signed on June 17, 1985); Total Number of Bilateral Investment Agreements
Concluded, supra note 178.
191. See Switz.-China, supra note 188 (renegotiated BIT signed on Jan. 27, 2009, replacing
the previous BIT signed on Nov. 12, 1986); Total Number of Bilateral Investment Agreements
Concluded, supra note 178.
192. It appears that China also renegotiated its BITs with Belgium and Luxembourg,
Bulgaria, France, Portugal, Romania, Spain, and Sweden, respectively, considering the fact that
the United Nations Conference on Trade and Developments country-specific list of BITs shows
a signing date in the 2000s while its database of the texts of BITs displays those signed in the
1980s and 1990s. See Agreement Between the Government of the Peoples Republic of China
and the Belgian-Luxembourg Economic Union on the Reciprocal Promotion and
Protection
of
Investments,
China-Belg.-Lux.,
June
4,
1984,
available
at
http://unctad.org/sections/dite/iia/docs/bits/china_belg_lux.pdf; China-Bulg., supra note 185;
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were concluded in the 2000s and are publicly available include a provision
that China could require the investor to exhaust domestic administrative
review procedures before using the BIT-based dispute settlement
proceedings.193 This condition for consent to arbitration is not allowed
under the ECT.194
Accord
Entre
le
Gouvernement
de
la
Republique
Franaise
et
le
Gouvernement de la Republique Populaire de Chine Sur LEncouragement et la
Protection Reciproques des Investissements, Fr.-China, May 30, 1984, available at
http://unctad.org/sections/dite/iia/docs/bits/france_china_fr.pdf; Acordo Entre o Governo da
Repblica Portuguesa e o Governo da Repblica Popular da China Sobre a Promoo e
Proteco Mtua e de Investimentos, Port.-China, Feb. 3, 1992, available at
http://unctad.org/sections/dite/iia/docs/bits/china_portugal_por.pdf; Agreement Between the
Government of the Peoples Republic of China and the Government of Romania Concerning
the Encouragement and Reciprocal Protection of Investments, China-Rom., July 12, 1994,
available at http://unctad.org/sections/dite/iia/docs/bits/china_romania.pdf; Acuerdo Para la
Proteccion y Fomento Reciproos de Inversiones Entre el Reino de Espaa y la
Republica
Popular
de
China,
Spain-China,
Feb.
6,
1992,
available
at
http://unctad.org/sections/dite/iia/docs/bits/spain_china_sp.pdf; Agreement on the Mutual
Protection
of
Investments,
China-Swed.,
Mar.
29,
1982,
available
at
http://unctad.org/sections/dite/iia/docs/bits/china_sweden.pdf; Total Number of Bilateral
Investment Agreements Concluded, supra note 178. In addition to these states, it should be noted
that Japan signed a trilateral investment agreement between itself, China, and South Korea on
May 13, 2012, although this new trilateral agreement does not replace the BIT between China
and Japan signed on August 27, 1988. Agreement Among the Government of Japan, the
Government of the Republic of Korea and the Government of the Peoples Republic of China
for the Promotion, Facilitation and Protection of Investment, Japan-S. Kor.-China, art. 25, May
13, 2012, available at http://www.mofa.go.jp/announce/announce/2012/5/pdfs/0513_01_01.pdf.
193. See China-Bosn. & Herz., supra note 188, art. 8(2) (either party may require exhaustion
of its domestic administrative review procedures); Czech-China, supra note 188, art. 9(3) (only
China requires exhaustion of domestic administrative review procedures); Protocol to the
Agreement on the Encouragement and Reciprocal Protection of Investments Between the
Government of Republic of Finland and the Government of the Peoples Republic of China,
art. 9, Nov. 15, 2004, available at http://unctad.org/sections/dite/iia/docs/bits/china_finland.pdf
(only China may require exhaustion of domestic administrative review procedures); Protocol to
the Agreement Between the Peoples Republic of China and the Federal Republic of Germany
on the Encouragement and Reciprocal Protection of Investments, to art. 9, Dec. 1, 2003,
available at http://unctad.org/sections/dite/iia/docs/bits/china_germany.pdf (only China requires
exhaustion of domestic administrative review procedures); Protocol to the Agreement Between
the Government of the Peoples Republic of China and the Government of the Republic of
Latvia on the Promotion and Protection of Investments, art. 9, Apr.15, 2004, available at
http://unctad.org/sections/dite/iia/docs/bits/China_Latvia.pdf (only China requires exhaustion of
domestic administrative review procedures); Protocol to the Agreement on Encouragement
and Reciprocal Protection of Investments Between the Peoples Republic of China
and the Kingdom of the Netherlands, art. 10, Nov. 26, 2001, available at
http://unctad.org/sections/dite/iia/docs/bits/china_netherlands.pdf
(only
China
requires
exhaustion of domestic administrative review procedures); Protocol to the Agreement Between
the Government of the Russian Federation and the Government of the Peoples Republic of
China on the Promotion and Reciprocal Protection of Investments, art. 9, Nov. 9, 2006, available
at http://unctad.org/sections/dite/iia/docs/bits/russia_china_ru.pdf (either party may require
exhaustion of its domestic administrative review procedures); Protocol to the Agreement
Between the Swiss Federal Council and the Government of the Peoples Republic of China on
the Promotion and Reciprocal Protection of Investments, art. 11(2)(a), Jan. 27, 2009, available at
http://unctad.org/sections/dite/iia/docs/bits/Switzerland_China_new.pdf (only China may require
exhaustion of domestic administrative review procedures).
194. 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. ECT, supra note 10, art. 26(3)(a) (emphasis
added). The exceptions allowed under this provision are: the Investors having already submitted
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caveat that the denial of benefit clause in Article 17(1) of the ECT might
apply to such case,198 this broader possibility of protection under the ECT
could benefit the Central Asian states. For example, even though the
United States does not have a BIT with China, if a U.S. company wanted
to make an investment in the construction of a new pipeline similar to the
CACGP, the company could establish a holding company in, say,
Kazakhstan and have the holding company invest in China so that such
investment benefits from ECTs protections.199 In this hypothetical, the
investment would be made in China and not Kazakhstan, but the holding
company incorporated in Kazakhstan would have some economic
activities and generate tax revenues.
B. Why Chinas Joining the ECT Would Benefit China
1. ECT Investment Provisions
With regard to the two ECT Contracting Parties with which China
does not have BITsthe Republic of Ireland and the Principality of
LiechtensteinChinese investors would obtain protection of their
energy-related investments in these states under the ECT. In addition,
the higher security in investment climate that China must ensure under
the ECT would encourage investment in China. The ECTs main
investment protection provisions are summarized below.
a. Protection Against Appropriation
Under Article 13 of the ECT, a host state may not expropriate foreignowned property or investments, or take a measure tantamount to
expropriation, unless the measure is: (1) conducted for a purpose in the
public interest; (2) not discriminatory; (3) carried out under due process
of law; and (4) accompanied by payment of prompt, adequate, and
effective compensation.200
b. Fair and Equitable Treatment
Article 10(1) of the ECT sets forth a flexible fair and equitable
treatment clause. In relation to past arbitral awards, the tribunals
interpreted, or at least left room for interpreting, the unfair and
inequitable treatment prohibited by this provision to include: breaching
legitimate expectations created by the state and relied upon by the
available at http://www.sccinstitute.com/filearchive/4/41105/Report%20Ten%20Years%20of%20
ECT%20Arbitration,%2030%20June%202011.pdf; see RUDOLF DOLZER & CHRISTOPH
SCHREUER, PRINCIPLES OF INTERNATIONAL INVESTMENT LAW 54 (2008).
198. See SALACUSE, supra note 197.
199. See Total Number of Bilateral Investment Agreements Concluded, supra note 178.
200. ECT, supra note 10, art. 13(1).
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Article 10(1) of the ECT also stipulates that investments shall[] 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.206
d. Most Favored Nation and National Treatment
Kazakhstan, Turkmenistan, and Uzbekistan, which are not WTO
members, do not provide China with the benefit of MFN treatment and
NT in the WTOs easily enforceable multilateral treaty format. In
addition, in the case of Kazakhstan and Turkmenistan, since Chinas
BITs with these states were signed in 1992,207 it is likely that they did not
provide for the fullest protection of investments. The ECT provides for
this benefit for energy-related investments. The ECTs MFN provision
prohibits states from discriminating against investors on the basis of
nationality and requires states to provide equally favorable treatment to
all investors no matter their nationality.208 The ECTs NT provision
requires a host state to treat foreign investors and their investments no
201. Plama Consortium Ltd. v. Bulgaria, ICSID, Case No. ARB/03/24, Award, 17576
(2008), available at http://www.encharter.org/fileadmin/user_upload/document/Plama_Bulgaria_
Award.pdf; Mohammad Ammar Al-Bahloul v. Tajikistan, SCC, Case No. V (064/2008), Partial
Award on Jurisdiction and Liability, 20002 (2009), available at http://www.encharter.
org/fileadmin/user_upload/Investor-State_Disputes/Partial_award_-_Mohammad-Tajikistan.pdf;
Ioannis Kardassopoulos and Ron Fuchs v. Georgia, ICSID, Case No. ARB/07/15, Award,
43552 (2010), available at http://www.encharter.org/fileadmin/user_upload/InvestorState_Disputes/Award_-_Ioannis_Kardassopoulos_vs_Georgia.pdf; Electrabel S.A v. The
Republic of Hungary, ICSID, Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law
and Liability, 7.140 (2012), available at http://www.italaw.com/sites/default/files/casedocuments/italaw1071clean.pdf. See AES SummitGeneration Ltd. and AES-Tisza ErmKft. v.
Hungary, ICSID, Case No. ARB/07/22, Award, 9.3.69.3.26 (2010), available at
http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&d
ocId=DC2853_En&caseId=C111.
202. Plama Consortium Ltd., Case No. ARB/03/24, supra note 201, 177; AES Summit
Generation Ltd. and AES-Tisza ErmKft., Case No. ARB/07/22, supra note 201, 9.3.27
9.3.30.
203. See AES Summit Generation Ltd. and AES-Tisza ErmKft, Case No. ARB/07/22,
supra note 201, 9.3.36.
204. Electrabel S.A., Case No. ARB/07/19, 7.142; see AES Summit Generation Ltd. and
AES-Tisza ErmKft, Case No. ARB/07/22, 9.3.369.3.37.
205. Petrobart Ltd. v. Kyrgyzstan, SCC, Case No. 126/2003, at 75 (2005), available at
http://italaw.com/sites/default/files/case-documents/ita0628.pdf; Al-Bahloul, Case No. V
(064/2008), supra note 201, 221.
206. ECT, supra note 10, art. 10(1).
207. Total Number of Bilateral Investment Agreements Concluded, supra note 178.
208. ECT, supra note 10, art. 10(3).
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223. See Energy Charter Secretariat, About the Charter, ENERGY CHARTER,
http://www.encharter.org/index.php?id=7&L=0 (last visited Jan. 12, 2013).
224. Energy Charter Secretariat, THE ENERGY CHARTER TREATY AND RELATED
DOCUMENTS: A LEGAL FRAMEWORK FOR INTERNATIONAL ENERGY COOPERATION (2004),
available at http://www.encharter.org/fileadmin/user_upload/document/EN.pdf.
225. See Zhang, supra note 62, at 611 (citing Cory Lam, 12th Five Year Plan Hailed as
Greenest FYP in Chinas History, CHINA BRIEFING, Apr. l5, 2011).
226. See PETERSEN & BARYSCH, supra note 37, at 42.