L'Unione Europea e le strategie di «disconnessione» dall'Energy Charter Treaty

The paper examines the problematic relations between the European Union (EU), its Member States (MS) and the Energy Charter Treaty (ECT). These relations are considered against the background of the ECT « modernisation » process, as well as the question of the incompatibility with the EU legal order of intra-EU investment arbitration under the ECT. The paper discusses the options taken or available for the EU and its MS to « disconnect » intra-EU investment disputes from the ECT’s arbitration clause. In particular, the paper analyses four alternatives: Amendment under article 42 ECT, subsequent agreement on the interpretation of the ECT under Article 31, para. 3 (a) of the 1969 Vienna Convention on the Law of Treaties (VCLT), inter se modification under Article 41 VCLT, and finally withdrawal under Article 47 ECT. The paper illustrates the hurdles that each option faces either from the perspective of the EU and from that of international law.