Dr. Michael de Boeck:

Yes, I would like to do so. I agree with Dr. Saheb. I would like to add one nuance, which is that if we all collectively decide to withdraw from the ECT, it does not seem self-evident to me that we get to decide between ourselves to disapply the so-called sunset or survival clauses. The applicable principle would be Article 41 of the Vienna Convention on the Law of Treaties which allows an inter semodification of certain commitments in an international treaty between certain of the parties only. That is, however, subject to certain limitations which are not, I believe, met in this case. For instance, it has to be allowed by the treaty that is being modified, which is not the case with the ECT, if I am not mistaken. This modification may also not concern an essential provision. The argument on the part of any investor bringing a claim would be that the ISDS is the absolute and most critical protection contained within the ECT.

I have a mind to think an investment tribunal would probably agree with that. I am not so sure, therefore, that if we decide to simply upend this process and leave and then agree between ourselves to disapply the survival clauses, investment tribunals would see it the same way. That said, the result would be that we would have to apply the protections for another 20 years. If we were to leave unilaterally, the result would probably be the same, given that we may not have an agreement between all the parties.

The other part of the question that we have not touched upon was what should be the position of the Irish Government. The Energy Charter Treaty is a mixed agreement. It is being negotiated by the European Commission, but it would be concluded by the European Union and the member states themselves. There is a certain division of competences that the Court of Justice of the European Union already clarified in several cases, most notably Opinion 2/15. The main takeaway from that is that since the Lisbon Treaty, under Article 207 of the Treaty on the Functioning of the European Union, foreign direct investment, FDI, is an exclusive competence of the European Union. By contrast, because the article explicitly refers to foreign direct investments, it does not include foreign indirect investments. However, as the court reasoned, that belongs to a shared competence of the EU.

The term "shared competences" does not actually mean that the EU and the member states must act at the same time, as the members probably very well know. It means that the EU might also act alone. It is not entirely clear to what extent a member state, as such, has bargaining power here. The control would probably have to be indirect through the trade policy committee in the EU Council, I suspect and, of course, at the moment ratification, because Ireland will need to ratify it. A similar thing happened with the Canadian Comprehensive Economic and Trade Agreement, CETA, which was also a mixed agreement. It was ultimately not ratified by Cyprus, if I am not mistaken, because there was insufficient protection of halloumi cheese. That is of course a legitimate concern for Cyprus, but the consequence of non-ratification by one of the member states is that the treaty does not enter into force for any of the EU member states.

There are certain authors who consider that member states have an obligation to ratify a mixed agreement once it has been concluded by the European Union, but that is not a certainty. It has not been said so far by the Court of Justice of the European Union. Therefore, I would think that if the Energy Charter Treaty moves forward in a form that is no improvement, then the Irish Parliament could in this case exert some control by refusing to ratify that agreement. Of course, whether that is useful in this case is a bit of a question, since the former agreement would then remain in force. It does not seem to be an attractive option.