By protecting the status quo, the ECT acts as a bodyguard for polluters. As the RWE example shows, when a government decides to phase out coal or cease oil and gas operations, fossil fuel companies can demand steep compensation via the ECT. So with no public benefits and clear risks for climate action, why are countries hesitant to leave the treaty? Two more myths are preventing them from taking action.
Firstly, ECT proponents claim that an ongoing process to ‘modernise’ the treaty will fix its flaws. But modernisation has proceeded at a snail’s pace since 2017, and is unlikely to succeed given resistance from powerful ECT members like Japan, whose companies have used the ECT to take legal action against other governments. Leaked reports show that the talks are stalled due to the requirement to take decisions unanimously.
No signatory state has proposed removing its dangerous corporate courts, which take the form of arbitration tribunals run by three private lawyers. No state has proposed a clear exemption for climate action. No ECT member wants to exclude protection of fossil fuels from the modernised treaty any time soon.
In short: the negotiations around ECT ‘modernisation’ will not bring the treaty in line with global climate commitments.
Secondly, ECT supporters claim that leaving the treaty offers no protection against costly lawsuits. The ECT’s sunset clause – which allows investors to sue a country for 20 years after its withdrawal from the treaty – makes a unilateral ECT exit useless, it is claimed.
In practice, however, withdrawing from the ECT significantly reduces countries’ risk of being sued and avoids carbon lock-in from new fossil fuel projects. The ECT’s sunset clause only applies to investments made before withdrawal, while those made after are no longer protected.
At a time when the majority of new energy investment is still in fossil fuels, not renewables, this is important. The sooner countries leave, the fewer new dirty investments will fall under the ECT and be ‘locked-in’ by its legal status.
Italy took the necessary step of withdrawing from the ECT in 2016. Going forward, if multiple countries decide to withdraw together – say, the EU bloc, supported by allies such as the UK or Switzerland – they can further weaken the sunset clause. Countries that withdraw could adopt an agreement that excludes claims within their group, before jointly leaving the ECT at the same time. That would make it difficult for investors from those countries to sue others from the group.
This week a European-wide petition has been launched so that citizens can call on their governments to end the ECT madness.
Leaving the outdated, climate-killing ECT is a no-brainer. It is not just good governance, but the logical step for all who take global warming seriously.