EU Council’s Denial of Benefits to Russian and Belorussian Investors under the Energy Charter Treaty: Assessment of the Decision’ Legality under EU and International Law (1st Essay Competition Prize Winner 2024)

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This essay deals with selected legal problems arising out of the EU Council’s decision adopted in June 2024. The Decision denies benefits of investment protection to Russian and Belorussian investors under the Energy Charter Treaty (ECT) adopted in June 2024. Because the ECT is a mixed agreement, this essay analyses the Decision from two angles: EU Law and International Law. From an EU-law perspective, it explores whether the EU Council can deny benefits to foreign investors on behalf of all Member States, or Member States can continue to afford benefits independently of the Council’s decision. It argues that even if decisions falling within Part III of the ECT do not have to be adopted unanimously, failure of a Member State to adhere to EU Council’s decision would constitute a breach of the sincere cooperation principle. From the viewpoint of International Law, the essay focuses on two key issues triggered by the Decision, namely its temporal scope and its effect on legitimate expectations of targeted investors. Regarding the application in time, the author argues that the Decision can have only prospective effects and should not apply retroactively. Regarding legitimate expectations, the Decision opens discussion on legitimate expectations that we might witness in potential claims in the years to come.