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The goal of this chapter is to shed light on energy trade regulation beyond the WTO, in the Energy Charter Treaty and in preferential trade agreements. The chapter also probes the complex legal relationship between the WTO and the ECT, including overlap and conflict with respect to subject matter, procedure and membership. The last part of the chapter examines recent trends and developments in preferential trade agreements, looking in particular at the energy chapters of the EU-Ukraine, EU-Singapore and EU-Mexico free trade agreements.
The findings of this book reveal that at the multilateral level there is a pressing need for rules that address the realities of cross-border trade in energy and tackle energy trade regulation in a proper and proactive manner. The concluding chapter therefore offers suggestions for enhanced energy governance from an institutional angle. It explores this question at three levels. First, it discusses the pros and cons of the WTO as a forum for tackling energy issues more proactively. It then contemplates possible scenarios for interaction between the WTO and the ECT for that purpose. Lastly, it briefly considers the possibility of innovating energy regulation through PTAs.
This chapter methodically discusses the rules of the WTO framework and disciplines relevant to energy, including several outstanding issues treated in case law. It follows the current structure of WTO agreements on goods, services, intellectual property and plurilateral agreements. On this basis, it reveals the where the WTO agreements do not optimally correspond to the realities of the energy sector (eg the goods/services divide). The chapter also highlights outstanding issues in case law and provides a summary table of energy-related disputes to date.
This chapter repositions the debate on dual pricing as part of the bigger challenge of combating climate change. It addresses dual pricing from the perspective of the broader task of reforming environmentally harmful fossil fuel subsidies. The chapter moves beyond the potentially discriminatory nature of dual pricing to lay out options for disciplining dual-pricing practices in the WTO system in the grounds of their negative environmental impact. After providing some background, the chapter explores two main avenues for dealing with dual pricing: it first discusses what possibilities exist under current WTO rules, and then it explores what action the WTO can take beyond its current legal toolkit in the wider context of fossil fuel subsidy reform. The key argument is that the WTO can be a crucial actor in eliminating dual-pricing policies and can facilitate and significantly contribute to fossil fuel subsidy reform.
Decentralization of the energy sector means the breaking-up of the sector and its vertically integrated enterprises and/or global cartels by separating its distinct functions (extraction, transmission and sale), thereby allowing for increased competition in the market. This chapter uses two case studies to illustrate the challenges the decentralization of largely vertically integrated energy markets poses for international trade law, including international trade law’s inability to deal comprehensively with the production quota practices of global energy cartels such as the Organization of Petroleum Exporting Countries (OPEC). The chapter then studies regional energy market decentralization policies (in this case the European internal market), focusing on the panel report in EU – Energy Package, and considers which WTO rules facilitate such policies and which constrain them.
The settlement of high-level disputes concerning energy trade is a relatively novel phenomenon in the multilateral trading system, although their number is steadily growing. The emergence of such disputes has brought to the fore energy-related concepts not previously faced by WTO panels and the Appellate Body (AB). One crucial concept in this regard is energy security’. The goal of this chapter is to shed light on the emerging notion of energy security in international trade and WTO law. Taking a two-pronged approach, it starts by studying the meaning of the concept of energy security and its evolving role in international (trade) law, and then critically assesses how panels and the AB have dealt with energy security and the implications of this case law for its treatment in future disputes.
The introduction to this book sets out its objectives: it offers an in-depth study of energy regulation in international trade law against the backdrop of energy markets that have radically changed over recent decades. In Part I, through a thorough discussion of the concepts, history and law of various legal frameworks applicable to international energy trade, it seeks to clarify what we mean by ‘energy’ in the context of international trade rules. Part II addresses the relationship between the existing rules and the huge challenges faced by energy markets today – notably, their decentralization and decarbonization – in the light of the ongoing quest for energy security. Through several case studies, it demonstrates that current international rules are often unable to meet the challenges faced by today’s changing energy.
The purpose of this chapter is threefold: (1) It explains energy as a concept that has transformed over the years and explains the difference between primary, secondary, renewable and non-renewable energy resources. In so doing, it refers to UN Statistics Division/International Energy Agency sources. (2) It explains how the rules of international trade law are relevant to the energy sector and when these rules become applicable to trade in energy; and (3) It explores the major changes energy markets have undergone in recent decades, focusing on decarbonization, decentralization and energy security.
This chapter discusses the controversial status of energy in international trade law from the early years of GATT up to the present time. It exposes as mistaken the assumption that energy was de jure excluded from the scope of GATT and the WTO through a study of commitments made in early GATT schedules. The chapter then analyses the factors have led to energy attracting more attention in the multilateral trading system, such as the oil crises in the 1970s, the emergence of new types of energy, the accession of major energy producers to the WTO and the inclusion of energy services as a negotiation topic in the Doha Round. Finally, the chapter discusses energy as a topic in WTO accession protocols and the rise of energy-related disputes in the WTO Dispute Settlement System