Panel VII: towards a WTO framework agreement on trade in energy

The interface of trade and climate change mitigation and adaptation is at the heart of contemporary legal developments in energy law. Yet, the challenges of climate change are merely the tip of the iceberg of unresolved and controversial issues relating to the status of energy in international law. The picture is one of fragmentation with multiple instruments involved. The bulk of regulation comes under domestic law and the role of regional and global law in addressing energy and secure production and supplies has remained unclear and unsettled. Doctrines of multilayered governance have hardly been applied to the sector.

The fundamental divide between goods and services does not offer an appropriate basis for addressing and regulating energy in an integrated manner in domestic and international law. Energy requires an integrated approach and does not lend itself to sectoral negotiations, depending upon different forms of energy applied to competing energy sectors. A comprehensive sectoral agreement on energy, encompassing both goods and services, would not render the current structure of the WTO Agreements obsolete. Recourse to a framework convention implies that its provisions may refer to pertinent provisions of other agreements of the WTO, in particular GATT and its instruments, GATS, TRIPS and the GPA. This is not new and has been done before, for example in defining the relationship of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) and GATT, or the agreements on agriculture and on industrial subsidies. They may also incorporate provisions of agreements outside the scope of the WTO, as did the TRIPS Agreement for the Paris and Berne Conventions on industrial property and copyright. Or, they allow reference to other provisions without incorporating them, for example a future and revised UNFCCC or Kyoto Protocol. Both reference and incorporation allow the building of a comprehensive and coherent agreement on energy within the WTO.