Onder 5.72. Rechtbank Den Haag 20 april 2016

Article 39 ECT designates – in accordance with the terminology of Article 14 VCLT and Article 6 FLIT – ratification, acceptance or approval as the means through which the Treaty can enter into force. This means that it cannot enter into force by signature, which is not in dispute. In light of its considerations in 382 and 385 of the Interim Awards, it is clear that also for the Tribunal the starting point was that Davydov’s signature could not replace the ratification required under Article 39 ECT and only related to the provisional application of the ECT. However, by attributing to the signing of the ECT the effect of unconditional consent of the Russian Federation to be provisionally bound by the Treaty and therefore also to Article 26 ECT, the Tribunal failed to realise that the scope of the signing was expressly restricted by the Limitation Clause in Article 45. As has been considered above, from Article 45 ECT it follows, in the interpretation of Article 45 ECT which the court considers correct, that the possibility of provisional application is focused on and depends on the compatibility of separate treaty provisions with the national law of a Signatory. From the treaty text it thus follows that by signing the ECT, the Russian Federation was provisionally bound by the arbitration clause of Article 26, in so far as this clause could be reconciled with Russian law. The mentioned general provisions of the FLIT therefore do not provide cause for the Tribunal’s opinion. In its interpretation of these general provisions, the Tribunal essentially deprived all meaning of the Limitation Clause and the requirement of ratification laid down in Article 39 ECT. Upon closer inspection, the Tribunal’s opinion implies that each treaty provision, even if the provisional application thereof is incompatible with national laws and the constitution, is assigned full force. This view can only be followed if the Limitation Clause is considered as an “all or nothing” provision, but as has been explained above, the court does not follow this interpretation.

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