The Issue of the State Responsibility under the Energy Charter Treaty

The Energy Charter Treaty has been the subject of an increasing attention since its ratification ten years ago. It was the first multilateral treaty in the world in the energy sector and introduced numerous innovations. One of the most important of these relates to the issue of state responsibility. Needless to say that when considering the issue of state responsibility one cannot forget the importance of the rules of attribution (and again the difference between attribution and state responsibility should be taken into account). Therefore, one should answer the question of contribution of the ECT in this issue especially with its case law and precedent and particularly since the Nykomb award. On the second level the relationship between contract and treaty should be examined. Specially if there is an attribution is the state directly responsible for contracts concluded by a state enterprise? And last but not least, one cannot ignore the controversial issue of the Umbrella clause and its ability to convert a contractual obligation into an international obligation, a breach of which can lead to international responsibility of the state.
This article aims to examine all of the above-mentioned questions and discuss the issue of state responsibility in the ECT. In order to limit the scope of discussion, only the crucial issues which have been considered in one of the cases under the ECT (i.e. the Nykomb case) will be reviewed. This mainly includes the effect of the umbrella clause and the relation between the treaty and the contract. In order to have a better understanding of these issues, it is essential that general points about the rules of attribution and umbrella clause be made. Finally it may be possible to draw a general picture of the current and probably the future situation of state responsibility under the ECT.