3.1
Minor treaty actions are generally technical amendments to existing treaties which do not impact significantly on the national interest.
3.2
Minor treaty actions are presented to the Committee with a short explanatory statement and are listed on the Committee’s website.
3.3
The Committee can choose to formally inquire into these treaty actions, or accept them without a formal inquiry and report. Once considered they are incorporated into a formal report of the Committee at the next opportunity.
3.4
The Committee has been asked to consider the following minor treaty actions:
Declaration of intention not to become a Contracting Party to the Energy Charter Treaty and the Energy Charter Protocol on Energy Efficiency and Related Environmental Aspects
Acceptance of the Accession of Vietnam to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.
Declaration of intention not to become a Contracting Party to the Energy Charter Treaty and the Energy Charter Protocol on Energy Efficiency and Related Environmental Aspects
Background
3.5
The intent of the Energy Charter Treaty (1994) (the Treaty) is to:
… promote access to international markets on commercial terms, and generally to develop an open and competitive market, for Energy Materials and Products.
3.6
The Treaty was negotiated to build on the European Energy Charter of 1991, and contains provisions intended to progressively liberalise international trade in energy materials and products so as to bring this trade into line with the principles of the General Agreement on Tariffs and Trade (1947) (GATT).
3.7
The Energy Charter Protocol on Energy Efficiency and Related Environmental Aspects (1994) (the Protocol), followed on from the Treaty, and is intended to:
… [define] policy principles for the promotion of energy efficiency as a considerable source of energy and for consequently reducing adverse Environmental Impacts of energy systems.
3.8
Australia signed the Treaty and Protocol in 1994 but has never ratified the Treaty or the Protocol. According to the Explanatory Statement, Australia’s sole material obligation under the Treaty as a signatory is to pay an annual fee to the Treaty Secretariat as required by Article 45(2)(c). In 2021, that fee was around A$342,000.
Nature of the minor treaty action
3.9
The treaty action is a declaration by Australia to the Depositary of the Treaty of Australia’s intention not to become a Contracting Party.
3.10
Article 45(3)(a) of the Treaty permits a signatory to the Treaty to declare its intention not to become a Contracting Party. Australia’s obligation to make annual financial contributions to the Treaty Secretariat will cease 60 days after receipt of notification by the Depositary.
Reasons for Australia taking the treaty action
3.11
According to the Explanatory Statement, Australia became a signatory to the Treaty and Protocol at a time when the future direction of trade and foreign policy in Europe in particular was uncertain as a result of the collapse of the Soviet Union.
3.12
The Explanatory Statement identified that over time, it has become clear that the largely Europe-centric membership and its focus on energy trade across the Eurasian land mass, including gas pipelines, means the Treaty has little relevance for Australia’s energy-related trade and investment.
3.13
In addition, the Treaty contains an Investor-State Dispute Settlement (ISDS) system which the Explanatory Statement confirmed has been used more than in any other treaty, some 135 times and has resulted in significant settlement claims.
3.14
Parties have sought to modernise the Treaty to deal with the problems arising from the ISDS mechanism and expand its membership beyond Eurasia, but according to the Explanatory Statement, this process is likely to take years with no guaranteed reform outcome.
3.15
Accordingly, the Explanatory Statement stated:
Successive DFAT [Department of Foreign Affairs and Trade] reviews of Australia’s involvement with the Treaty have assessed that any benefits of maintaining our association with the Treaty are outweighed by the financial costs. Notifying the Depositary of Australia’s intention not to become a Contracting Party to the Treaty would end the obligation to pay annual contributions. This would not prejudice Australia remaining an observer at the annual conference or becoming a Contracting Party in the future should the Government assess that circumstances had changed to warrant this.
3.16
The Explanatory Statement provided that there are no regulatory impacts on Australian businesses, individuals or community organisations, and no legislative changes will be necessary as a result of this treaty action.
Acceptance of the Accession of Vietnam to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters
Background
3.17
The proposed treaty action is Australia’s acceptance of the accession of Vietnam to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (1970) (the Convention).
3.18
The Convention opened for signature on 18 March 1970 and entered into force in 1972. It entered into force for Australia on 22 December 1992. There are currently 64 Contracting Parties to the Convention.
3.19
The Convention establishes a framework for obtaining evidence abroad in civil and commercial proceedings. Through a network of Central Authorities in Contracting States, the Convention provides judicial authorities with a request structure and communication channel. Through Central Authorities, Contracting States can execute requests and avoid the need for recourse to consular and diplomatic channels. However, the Convention provides for any difficulties that may arise between Contracting States in connection with the operation of the Convention to be settled through diplomatic channels.
3.20
The execution of Requests does not require the reimbursement of taxes or costs, other than fees paid to experts, interpreters, or via the use of special procedures.
3.21
The Central Authority in Australia is the Secretary of the Attorney-General’s Department. The Central Authority, having determined the letter of request complies with the Convention, transmits the request to an authority competent to execute it.
Key provisions in the treaty
3.22
For accession of a new party to have effect between a Contracting State and the new party, the Contracting State must declare formal acceptance of the accession by depositing its instrument with the Ministry of Foreign Affairs of the Netherlands.
3.23
The Convention would enter into force between Australia and Vietnam 60 days after Australia’s declaration of acceptance is deposited.
Reasons to take the treaty action
3.24
According to the Explanatory Statement, acceptance of the accession would:
significantly reduce the time taken to obtain evidence between Australia and Vietnam
enhance Australian litigants’ ability to access evidence located in Vietnam
enable better international legal cooperation in civil or commercial matters between Australia and Vietnam.
3.25
To date, Australia has accepted the accession of 40 countries, including China, India, Singapore and Brazil.
3.26
The Explanatory Statement confirmed no legislative changes are required to implement the proposed treaty action.
Conclusion
3.27
The Committee supports these minor treaty actions and agreed that binding treaty action be taken in relation to both minor treaty actions.
Chair
29 November 2021