The Blue Book

The Energy Charter Treaty obliges member states to endeavour to provide non-discriminatory treatment to investors from other member states in the ‘pre-investment phase’, i.e., the making of investments. This obligation, described in more detail in Article 10(2) of the Treaty, applies to the 47 parties who have ratified the Treaty and to the two signatories that have accepted provisional application of the Treaty.

Any country that maintains measures that do not conform to this standard of treatment are obliged to register them. The full register of such non-conforming measures is published in the so-called ‘Blue Book’. Progress towards removal of the measures recorded in the Blue Book is kept under regular review by the Energy Charter Conference and its Investment Group.

The latest version of the Blue Book is available by clicking on book cover image. The existing non-conforming measures have been arranged, for reason of ease of reference, into five categories:

In addition to this ‘best endeavours’ clause, Article 10(4) provides for negotiations on a legally binding instrument (the so-called “Supplementary Treaty”) for the pre-investment phase.

Such a document would allow investors from member countries to be on equal legal footing with their domestic competitors in the host country when, for instance, applying for the granting of a licence/concession or in the context of privatisation procedures.

Negotiations on this Supplementary Treaty started in 1996, and have not been concluded. In autumn 2002, member states decided to put negotiations on hold pending the outcome of discussions in the WTO on a multilateral framework for foreign direct investment.

For reference, the draft of the Supplementary Treaty is available here. It consists of the following parts: the draft Final Act; the draft text of the Supplementary Treaty; the draft Decisions with respect to the ECT and the Supplementary Treaty; and the draft Declaration on Environment and Social Standards and Guidelines to Investors.