Markus Burgstaller is an Associate in Hogan Lovells’ London office. In his work he focuses on European and Public International Law. He regularly advises investors and states on investment protection issues and acts as Counsel in international arbitrations. Before joining Lovells, Markus served for more than four years as Legal Advisor on European and Public International Law in the Prime Minister’s Office in Vienna. Then, he acted in numerous cases before the European Court of Justice, the Court of First Instance and the European Commission. Further professional experience includes positions at the University of Vienna’s Institute of Public International Law and at international law firms in Vienna and Paris.
The Energy Charter Treaty (“ECT”) is a multilateral treaty with 48 Contracting Parties,1 including the European Union2 and all 27 EU Member States. On the part of the Union and the Member States the ECT was concluded as a mixed agreement, falling within the scope of both Union and Member State competence.3 Under Article 26 ECT, an investor of a Contracting Party may submit disputes against another Contracting Party regarding alleged breaches of Part III of the ECT. To date, arbitration proceedings have not yet been commenced against the Union under the ECT. Nevertheless, given that both the Union and the Member States are Contracting Parties to the ECT, it is important to answer the question who will be the proper respondent for an investor from a third State: is it the Member State only or the Member State and the Union or the Union only?