This Handbook makes an attempt to offer guidance to governments on possible drafting and negotiation  approaches  that  can  be  considered  on  a  voluntary  basis  when  preparing  for  entering  into complex  negotiations  in  the  energy  sector.  The  Handbook  is  divided  into  several  chapters, most frequently encountered or otherwise dealt with in complex agreements in the energy sector. Energy  projects  differ  in  scope,  have  unique  technical  facets,  and  are  subject  to  numerous  legal requirements, including those arising from international law and relevant supra-national and national legal systems. 

As a result of the 2014 Review conducted under Article 34.7 of the Energy Charter Treaty, the Energy Charter Secretariat engaged in a series of activities to analyse the existing barriers to the establishment of energy investment, the benefits of shared principles for the establishment of investment as well as available policy options to remove such barriers by means of domestic and international rules.

After a series of activities which contained expert meetings and joint sessions with investment experts from contracting parties, observer states, third countries, international organisations, regulatory authorities and investment promotion agencies, the Secretariat prepared numerous discussion notes, reports, analyses on wide range of opportunities for further steps for the ECT Constituency (binding and soft instruments) to the establishment of energy investment.

As a result of the groundwork undertaken so far, the Energy Charter Conference mandated the Secretariat to formulate non-binding policy options, which could facilitate the removal of non-discriminatory and de facto barriers to the establishment (entry) of energy investments.

Based on the discussion that took place at the meetings of the Implementation Group and expert consultations in 2017, the Secretariat prepared the Energy Charter Investment Facilitation Toolbox (INV Toolbox), which in its 1st edition, contains a checklist of policy options for removing non-discriminatory and de facto barriers to the establishment (entry) of energy investments.

This report is part of the activities carried out by the Energy Charter Secretariat in 2016-2017 aimed at preparing the groundwork on policy options for eliminating barriers to the establishment of energy investments. It contributes to these activities by answering the research questions: what are the international legal instruments available for removing barriers to the establishment of energy investments? What is the current practice of negotiating pre-investment obligations? What are the challenges in negotiating a new binding instrument in the energy sector and what lessons can be learnt from past experiences? What are the opportunities for negotiating a non-binding instrument?

This report has been prepared by Ms. Maiko Meguro who was a research fellow at the Secretariat and a former deputy director of Economic Partnership Division, Ministry of Economy, Trade and Industry, Japan. She was an officer in charge of the investment and service chapters of the Trans-Pacific Partnership, the EU-Japan Economic Partnership Agreement (EPA), the Japan-Turkey EPA, and also other Bilateral Investment Treaties (BITs). She is currently on sabbatical from the Government of Japan, and based at University of Amsterdam. The report was prepared in cooperation with Mr. Matteo Barra who was a Senior Investment Expert at the Energy Charter Secretariat.

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 parties who have ratified the Treaty or apply it provisionally.

The report ‘Intergovernmental Agreements and Host Government Agreements on Oil and Gas Pipelines: A Comparison’ was prepared by Ms. Barbara v. Gayling-Westphal as a legal intern at the Energy Charter Secretariat. The report also benefited from discussions held in 2014 and 2015 at the meetings of the Trade and Transit Group, as well as of the Legal Advisory Task Force.

The aim of the report is to present a comprehensive overview of existing legal practices in cross-border pipeline projects in several parts of the world. To this end, the report first identifies 19 core topics of cross-border pipeline agreements. It then evaluates how these topics are incorporated in 17 different cross-border oil and gas pipeline projects as well in the Energy Charter Model Agreements on Cross-Border Pipelines and in the provisions of the draft Transit Protocol. Recommendations are made in view of a possible agreement on common principles or rules on transit and cross-border energy flows in the Energy Charter context.

Electricity Model Agreements consist of:

• an Intergovernmental Electricity Model Agreement (IG-EMA) for state-to-state agreements; and
• a Host Government Electricity Model Agreement (HG-EMA) for agreements between an individual state and the project investors.

The EMAs, welcomed by the Energy Charter Conference in November 2008 and released in 2011, include an explanatory note which gives a brief account of the purpose, nature and structure of both the IG-EMA and the HG-EMA.

In the course of preparing the EMAs, a need was identified for a third document, namely, the Electricity Model Agreement Guidelines (GEMA), in order to deal with the operational issues specific to cross-border electricity projects. Therefore, the Secretariat has developed GEMA with the help of consultants and with the valuable assistance of the Legal Advisory Task Force.

GEMA, welcomed by the Energy Charter Conference in December 2009 and released in 2011, includes a section which explains its background and purpose.

The Second Edition of Pipeline Model Agreements consists of:

• an Intergovernmental Pipeline Model Agreement (IG-PMA) for state-to-state agreements; and
• a Host Government Pipeline Model Agreement (HG-PMA) for agreements between an individual state and the project investors.

In 2004, the first edition of PMAs helped to provide a basis for negotiations between Kazakhstan and Azerbaijan on the trans-Caspian Aktau-Baku transport system, which would provide an additional export route for Kazakh energy resources through the Baku-Tbilisi-Ceyhan pipeline. This is an example of how PMAs could be of help to facilitate negotiations for cross-border pipeline projects.

The second edition of PMAs, welcomed by the Energy Charter Conference in December 2007 and released in 2008, includes an explanatory note which gives a brief account of the purpose, nature and structure of both the IG-PMA and the HG-PMA.