Today's development of renewable energy technologies is perceived as an essential ingredient of the world’s response to emerging challenges of energy security, global warming, and climate change. However, the global deployment of renewables needs huge financial and technological contributions that many States cannot afford. Therefore the promotion of foreign investments in this sector is at the stake. However, the global flow of investment and technology in this sector is not free from the regulations of international trade and investment law instruments. Among the prominent provisions common to these instruments are Market Access obligations. WTO agreements and IIAs provide for different levels of market access. Moreover, the possible contribution of these provisions in each case depends on the approach of the applicable agreements to the renewable energy sector in particular. Therefore it is also important to collaterally understand the overall approach of international trade and investment agreements to this sector since it appears to be a two-dimensional matrix. Therefore to clarify the possible contribution of market access provisions to the promotion of foreign investments in the renewable energy sector, this article, after providing an introduction, expounds on the status of the applicable market access obligations to this sector under trade law. Consequently, it deals with the approach of IIAs in this regard. Finally, it concludes that so far both the legal systems have to a great extent overlooked the importance of establishing robust pro-renewable energy market access obligations.



Journals and Periodicals

Ghaziani, Mohammad Akefi, Vahid Akefi Ghaziani, and Moosa Akefi Ghaziani. “Most Favoured Nation Clause: Unleashing its Legal Potential in Favour of Foreign Investors in Renewable Energy Sector.” Indonesia Law Review 12, no. 2 (2022): 60-85.

Bruce, Stuart. “International Law and Renewable Energy: Facilitating Sustainable Energy for All?.” Melbourne Journal of International Law 14, no. 1 (2013): 18-53.

Burrell, Alison, Stephan Hubertus Gay and Aikaterini Kavallari. “The Compatibility of EU Biofuel Policies with Global Sustainability and the WTO.” The World Economy 35, no. 6, (2012): 784-798.

Cai, Lei. “Where does China Stand: the Evolving National Treatment Standard in BITs?,” The Journal of World Investment & Trade 13, (2012): 373-389.

Chaisse, Julien. “Renewables Re-energized? The Internationalization of Green Energy Investment Rules and Disputes.” World Energy Law & Business 9, no. 4 (2016): 269-281.

Egger, Peter and Valeria Merlo. “BITs Bite: An Anatomy of the Impact of Bilateral Investment Treaties on Multinational Firms.” Scandinavian Journal of Economics 144, no. 4 (2012): 1240–1266.

Giannopoulos, Nikolaos. “International Protection of Foreign Investments in Offshore Energy Production and Marine Environmental Protection: Birds of a Feather or Frenemies Forever?.” Netherlands International Law Review 68, (2021): 149-280.

Rietiker, Daniel. “The Principle of ‘Effectiveness’ in the Recent Jurisprudence of the European Court of Human Rights: Its Different Dimensions and Its Consistency with Public International Law – No Need for the Concept of Treaty Sui Generis.” Nordic Journal of International Law 79, no. 2 (2010): 245-277.

Sussman, Edna. “The Energy Charter Treaty’s Investor Protection Provisions: Potential to Foster Solutions to Global Warming and Promote Sustainable Development.” ILSA Journal of International & Comparative Law 14, no. 2 (2008): 391-404.

Tienhaara, Kyla. “Unilateral Commitments to Investment Protection: Does the Promise of Stability Restrict Environmental Policy Development?.” Yearbook of International Environmental Law 17, (2008): 139-167.

Tienhaara, Kyla and Christian Downie. “Risky Business? The Energy Charter Treaty, Renewable Energy, and Investor-State Disputes.” Global Governance 24, no. 3 (2018): 451- 741.

Tomoko, Yamashita. “Procedural and Normative Competition between the WTO’s Dispute Settlement and the Investor-State Arbitration: Focusing on the National Treatment Principle.” Public Policy Review 16, no. 5 (2020): 1-23.

Verburg, Cees and Jaap Waverijn. “Liberalizing the Global Supply Chain of Renewable Energy Technology: The Role of International Investment Law in Facilitating Flows of Foreign Direct Investment and Trade.” Brill Open Law 2, no. 1, (2019): 101-139.

Books and Book Chapters

Araki, Ichiro and Gabrielle Marceau. “GATT/WTO and Managing International Trade Relations” in Global Governance: The Role of International Institutions in the Changing World, edited by Sejong Institute, 187-251. Seongnam: Sejong Institute, 1997.

Arup, Christopher, The New World Trade Organization Agreements: Globalizing Law Through Services and Intellectual Property. Cambridge: Cambridge University Press, 2000.

Bora, Bijit, Aki Kuwahara, and Sam Laird, Quantification of Non-Tariff Measures. New York: United Nations Publication, 2002.

Bradford, Gentry and Jennifer Ronk. “International Investment Agreements and Investments in Renewable Energy” in From Barriers to Opportunities: Renewable Energy Issues in Law and Policy, edited by Leslie Parker et al., 25-87. New Haven: Forestry & Environmental Studies Publications Series, 2007.

Brink, Charlotte H., Measuring Political Risks: Risks to Foreign Investments. London: Routledge, 2016.

Cowhey, Peter F. and Jonathan David, Managing the World Economy: The Consequences of Corporate Alliances. New York: Council on Foreign Relations Press, 1993.

De Mestral, Armand. “Pre-Entry Obligations under International Law” in International Investment Law: A Handbook, edited by Marc Bungenberg et al., 685-699. London: Beck-Hart-Nomos, 2014.

Fingerman, Kevin Robert, Measuring and Moderating the Water Resource Impact of Biofuel Production and Trade. Doctoral Thesis, University of California, Berkeley, 2012.

Fitz-Gerald, Louisa and Paul Curnow. “Australian Case Study” in From Debate to Design: Issues in Clean Energy and Climate Change Law and Policy, edited by Leslie Parker et al., 113-162. New Haven: Yale School of Forestry and Environmental Studies, 2008.

Fugazza, Marco and Claudia Trentini, Empirical Insights on Market Access and Foreign Direct Investment. New York: United Nations Publication, 2014.

Gazzini, Tarcisio. “Energy Charter Treaty: Achievements, Challenges and Perspectives” in Foreign Investment in the Energy Sector Balancing Private and Public Interests, edited by Eric De Brabandere and Tarcisio Gazzini, 105-129. Leiden: Koninklijke Brill nv, 2014.

Goldman, Q.C., Calvin S. and Brian A. Facey. “Antitrust and Trade Policy: International Business Perspectives” in International Antitrust Law & Policy: Fordham Corporate Law 1998, edited by Barry Hawk, 279-297. New York: Juris Publishing, 1999.

Hahn, Michael and Kateryna Holzer. “Special Agreements and Energy: Filling the Gaps” in Emerging Issues in Sustainable Development, edited by Mitsuo Matsushita and Thomas J. Schoenbaum, 259-278. Japan: Springer, 2016.

Hasanuzzaman, M. and Laveet Kumar. “Energy Supply” in Energy for Sustainable Development: Demand, Supply, Conversion and Management, edited by Md. Hasanuzzaman and Nasrudin Abd Rahim, 88-104. London: Academic Press, 2020.

Haverkamp, Jennifer A. and Leslie Parker. “Governments Must Act to Boost Trade in Biofuels: World Trade Organisation Rules Governing Biofuels and Feedstocks Need Updating” in From Debate to Design: Issues in Clean Energy and Climate Change Law and Policy, edited by Leslie Parker et al., 225-228. New Haven: Yale School of Forestry and Environmental Studies, 2008.

International Energy Agency, Perspectives for the Energy Transition – Investment Needs for a Low Carbon Energy System. Bonn: IEA/IRENA, 2017.

International Energy Agency, World energy outlook 2002. Paris: International Energy Agency, 2002.

Kojima, Masami, Donald Mitchell, and William Ward, Considering Trade Policies for Liquid Biofuels. Washington, DC: The World Bank Group, 2007.

Kuntze, Jan-Christoph and Tom Moerenhout, Local Content Requirements and the Renewable Energy industry - A Good Match?. Geneva: International Centre for Trade and Sustainable Development, 2013.

Lesniewska, Feja. “Renewable Energy Waste Management and the Circular Economy in the EU: Solar PV and Wind Power” in Research Handbook on EU Energy Law and Policy, edited by Rafael Leal-Arcas and Jan Wouters, 460-468. Cheltenham: Edward Elgar Publishing, 2017.

Mbengue, Makane Moïse and Deepak Raju. “Energy, Environment and Foreign Investment” in Foreign Investment in the Energy Sector Balancing Private and Public Interests, edited by Eric De Brabandere and Tarcisio Gazzini, 171-191. Leiden: Koninklijke Brill nv, 2014.

OECD. Better Policies for Development 2015: Policy Coherence and Green Growth. Paris: OECD Publishing, 2015.

OECD. Green Finance and Investment: Overcoming Barriers to International Investment in Clean Energy. OECD Publishing, Paris, 2015.

OECD. International Investment Law: Understanding Concepts and Tracking Innovations. Paris: OECD Publishing, 2008.

Ortino, Federico. The Origin and Evolution of Investment Treaty Standards. Oxford: Oxford University Press 2019.

Parlin, C. Christopher. "Current Developments Regarding the WTO Financial Services Agreement" in Current Developments in Monetary and Financial Law, Vol. 3, 943-56. USA: International Monetary Fund 2005.

Qin, Julia Ya. “Reforming WTO Discipline on Export Duties: Sovereignty Over Natural Resources, Economic Development and Environmental Protection” in Emerging Issues in Sustainable Development, edited by Mitsuo Matsushita and Thomas J. Schoenbaum, 139-183. Japan: Springer, 2016.

REN21. Renewables in Cities 2021 Global Status Report. Paris: REN21 Secretariat, 2021.

Salacuse, Jeswald W. and Nicholas P. Sullivan. “Do BITs Really Work? An Evaluation of Bilateral Investment Treaties and Their Grand Bargain” in The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties, and Investment Flows, edited by Karl P. Sauvant and Lisa E. Sachs, 109-170. Oxford: Oxford University Publication, 2009.

Sauvant, Karl P. and Jennifer Reimer. FDI Perspectives: Issues in International Investment. New York: Vale Columbia Center on Sustainable International Investment, 2012.

Schefer, Krista Nadakavukaren. “Climate Change, Trade, and Investment Law: What Difference Would a Real Responsibility to Protect Make?” in Emerging Issues in Sustainable Development: International Trade Law and Policy Relating to Natural Resources, Energy, and the Environment, edited by Mitsuo Matsushita and Thomas J. Schoenbaum, 383-398. Japan: Springer 2016.

Schill, Stephan W. “Multilateralization: An Ordering Paradigm for International Investment Law” in International Investment Law: A Handbook, edited by Marc Bungenberg et al., 1817-1838. London: C.H. Beck-Hart-Nomos, 2015.

Sornarajah, M., The International Law on Foreign Investment. Cambridge: Cambridge University Press, 2021.

UNCTAD, The Role of International Investment Agreements in Attracting Foreign Direct Investment to Developing Countries. New York: United Nations Publication, 2009.

UNCTAD, UNCTAD Series on International Investment Policies for Development: Investment Promotion Provisions in International Investment Agreements. New York: United Nations Publication, 2008.

Wilder Am, Martijn and Lauren Drake. “International Law and the Renewable Energy Sector” in The Oxford Handbook of International Climate Change Law, edited by Cinnamon P. Carlarne, Kevin R. Gray, and Richard G. Tarasofsky, 357-390. Oxford University Press, 2016.

Ziegler, Andreas R. “Investment Law in Conflict with WTO Law?” in International Investment Law: A Handbook, edited by Marc Bungenberg et al., 1784-1801. London: C.H. Beck-Hart-Nomos, 2015.

Legal Documents

Agreement on Subsidies and Countervailing Measures, 1869 UNTS 14 (signed 15 April 1994, entered into force 1 January 1995) (SCM).

Agreement on Trade-Related Investment Measures. 1868 UNTS 186 (opened for signature 15 April 1994, entered into force 1 January 1995).

Comprehensive Economic and Trade Agreement between Canada and the European Union. (adopted 30 October 2016, not yet in force).

Energy Charter Secretariat, Decision of the Energy Charter Conference: Adoption by Correspondence – Policy Options for Modernisation of the ECT, CCDEC 2019 08 STR (adopted on 6 October 2019).

Energy Charter Treaty. 2080 UNTS 100 (opened for signature 17 December 1994, entered into force 16 April 1998) (ECT).

EU - United Kingdom Trade and Cooperation Agreement. 2020 OJ L 444/14 (signed 30 December 2020, provisionally applied 1 January 2021).

Free Trade Agreement between the European Union and Vietnam. [2020] OJ L 186/3 (signed 30 June 2019, entered into force 1 August 2020).

General Agreement on Tariffs and Trade. 1867 UNTS 187 (opened for signature 30 October 1947, entered into force 1 January 1948) (GATT).

General Agreement on Trade in Services. 1869 UNTS 183 (opened for signature 15 April 1994, entered into force 1 January 1995) (GATS).

Parkerings-Compagniet AS v Republic of Lithuania (Award) (ICSID Arbitral Tribunal, Case No ARB/05/8, 11 September 2007).

The Council of the European Union. Conclusions on a Comprehensive European International Investment Policy. 3041st Foreign Affairs Council Meeting. Luxembourg. 25 October 2010.

The US Model Bilateral Investment Treaty (2012).

Treaty on the Functioning of the European Union. 2010 OJ C 83/13 (opened for signature 25 March 1957, entered into force 1 December 2009).

United States–Mexico–Canada Agreement (entered into force 1 July 2020).

Vienna Convention of the Law of Treaties. 1155 UNTS 331 (opened for signature 23 May 1969, entered into force 27 January 1980).

WTO Agreement: Marrakesh Agreement Establishing the World Trade Organization. 1867 UNTS. 154 (adopted 15 April 1994).


Chakrabarti, Avik. “Determinants of FDI: A Comment on Globalization-Induced Changes and the Role of FDI Policies.” University of Wisconsin. Accessed 25 November 2022, https://citeseerx.ist.psu.edu/viewdoc/download?doi=

Garretsen, Harry, Maarten Bosker. “Market Access: A Key Determinant of Economic Development in Sub-Saharan Africa.” World Bank Blogs. Accessed 20 November 2022, https://blogs.worldbank.org/developmenttalk/market-access-a-key-determinant-of-economic-development-in-sub-saharan-africa.

IRENA. “Energy Transition Holds Key to Tackle Global Energy and Climate Crisis.” Accessed 22 November 2022, https://www.irena.org/News/pressreleases/2022/Mar/Energy-Transition-Holds-Key-to-Tackle-Global-Energy-and-Climate-Crisis.

Jaller, Lillyana Daza, Panos Delimatsis and Martín Molinuevo, “Market Access under the GATS – A Legal Commentary on Article XVI GATS.” TILEC Discussion Paper No. DP2022-011. Accessed 30 May 2023, https://ssrn.com/abstract=4141380 or http://dx.doi.org/10.2139/ssrn.4141380

Kenton, Will, Michelle P. Scott. “Market Access.” Investopedia. Accessed 30 November 2022, https://www.investopedia.com/terms/m/market-access.asp.

Kulkarni, Siddharth, Lin Wang and Demetrios Venetsanos. “Technology Transfer Challenges in the Renewable Energy Sector.” Scholarly Community Encyclopedia. Accessed 30 May 2023, https://encyclopedia.pub/entry/21444.

The Office of the United States Trade Representative. “Environmental Goods Agreement.” Accessed 20 November 2022, https://ustr.gov/trade-agreements/other-initiatives/environmental-goods-agreement.

UNCTAD Database. “Mapping of IIA Content.” Accessed 30 September 2022, https://investmentpolicy.unctad.org/international-investment-agreements.

Vetter, David. “‘Climate Security Is Energy Security’: COP26 President’s Warning To the World.” Forbes. Accessed 20 November 2022, https://www.forbes.com/sites/davidrvetter/2022/05/16/climate-security-is-energy-security-cop26-presidents-warning-to-the-world/?sh=97d653f2a215.

World Trade Organization. “Doha Round: what are they negotiating?” Accessed 25 August 2022, https://www.wto.org/english/tratop_e/dda_e/update_e.htm.