Abstract

The word "hydrogen" is nowhere to be found in the Energy Charter Treaty ("ECT or "Treaty"). Some readers may jump to the conclusion that green hydrogen is thus unprotected under the ECT. However, there does seem to be room for debate on the matter. Accordingly, this paper will discuss whether green hydrogen-related assets could fall under the investment protection regime of the ECT. Readers shall be introduced to the concept of evolutive interpretation of treaties and how it can be applied to generic terms under the ECT. Concurrently, it shall be shown how the pro-renewable object and purpose of the ECT can support a pro-hydrogen construction of the Treaty. The introductory part shall be followed by discussion of its application to the abstract case of "upgrading" of existing gas pipelines to embrace green hydrogen. To make the whole analysis comprehensible the author will propose how to best navigate between Treaty provisions critical during the jurisdictional phase of arbitral proceedings under the ECT (the product-activity-asset nexus).

This paper will be part of the OGEL Special Issue on "The Hydrogen Economy". More information here www.ogel.org/news.asp?key=648