The European Union’s proposal for the modernization of the energy charter treaty

After the European Court of Justice seminal decision in Achmea, where consent to investor-State arbitration enshrined in intra-EU bilateral investment treaties was found to be incompatible with the autonomy of the European Union (EU) legal order, the European Commission has presented a draft proposal for the modernization of the Energy Charter Treaty (ECT). The proposal relies markedly on the new investment agreements concluded between the European Union and third states, mainly CETA and the agreements with Singapore and Vietnam. It puts forward some key amendments on substantive provisions, by creating regulatory space for sustainable development and transition to clean energy. As regards the fair and equitable standard, the proposal adds that the ‘the tribunal may take into account whether a Contracting party made a specific representation to an investor to induce a covered investment, that created a legitimate expectation, upon which the investor relied in to make or maintain the covered investment’. This article focuses on the concept of ‘specific representation’, by asking whether it (still) encompasses promises made by the legislator, in order to access the impact that said provision might have on previous ECT arbitration case law concerning renewable energy and climate change.