Energy Charter Treaty

45 Energy Charter Treaty Article 5: Trade-Related Investment Measures 29 [DECLARATION With respect to Articles 5 and 10(11) Australia notes that the provisions of Articles 5 and 10(11) do not diminish its rights and obligations under the GATT, including as elaborated in the Uruguay Round Agreement on Trade-Related Investment Measures, particularly with respect to the list of exceptions in Article 5(3), which it considers incomplete. Australia further notes that it would not be appropriate for dispute settlement bodies established under the Treaty to give interpretations of GATT articles III and XI in the context of disputes between parties to the GATT or between an Investor of a party to the GATT and another party to the GATT. It considers that with respect to the application of Article 10(11) between an Investor and a party to the GATT, the only issue that can be considered under Article 26 is the issue of the awards of arbitration in the event that a GATT panel or the WTO dispute settlement body first establishes that a trade-related investment measure maintained by the Contracting Party is inconsistent with its obligations under the GATT or the Agreement on Trade- Related Investment Measures.] 30 (1) A Contracting Party shall not apply any trade-related investment measure that is inconsistent with the provisions of article III or XI of the GATT 1994; 31 this shall be without prejudice to the Contracting Party’s rights and obligations under the WTO Agreement 32 and Article 29. [UNDERSTANDING With respect to Article 5(1) The representatives’ agreement to Article 5 is not meant to imply any position on whether or to what extent the provisions of the “Agreement on Trade-Related Investment Measures” annexed to the Final Act of the Uruguay Round of Multilateral Trade Negotiations are implicit in articles III and XI of the GATT.] 33 (2) Such measures include any investment measure which is mandatory or enforceable under domestic law or under any administrative ruling, or compliance with which is necessary to obtain an advantage, and which requires: 29 See also Article 28 and Annex D. 30 Final Act of the European Energy Charter Conference, Declaration 2. 31 Modification based on Art. 2 of the Amendment to the Trade-Related Provisions of the Energy Charter Treaty. 32 Id. 33 Final Act of the European Energy Charter Conference, Understanding 6.