Eu Bit Termination Agreement

- December 08, 2020

The whistleblowing agreement is subject to the ratification requirements of each Member State`s national legislation. The agreement will enter into force when the second ratification is tabled with the Secretary General of the Council of the EU. For each Member State, the agreement becomes mandatory 30 days after the Member State has submitted its ratification. In practice, this means that the whistleblowing agreement is its instrument of ratification for every internal bit of the EU 30 days after the last of the States Parties in this bit. In accordance with Achmea, the termination agreement aims to clarify that the diverging provisions of the internal ILO within the EU “can no longer be applied after the date on which the last parties to a bilateral investment agreement within the EU became members of the EU`s internal investment agreement”. 3 To this end, the termination agreement has the effect of terminating the EU`s internal bitt after it enters into force in the relevant EU Member States and removing the expiry clauses contained in these BITS, so that they do not extend contractual protection beyond the termination date. within six months of the end of the bilateral investment contract on the basis of which the pending arbitration procedure was initiated if the article 9 structured dialogue was not used; It is interesting to note that the termination agreement does not explain what will happen to the dispute if no transaction agreement has been reached. Can the investor continue the arbitration process or is the dispute suddenly closed? As we discussed at the signing of the agreement, it remains to be seen how the arbitration tribunals will react in practice to the agreement in the context of the ongoing and future arbitration proceedings in the internal arbitration procedure in the EU. Articles 54 (b) and 70 of the Vienna Convention on Contract Law and the relationship between the agreement and the CIHIR Convention influence the decision that investors can in future continue to rely on the ilO`s internal EU protection. It will also be interesting to see whether investors and states are using “structured dialogue” to settle ongoing matters, as stipulated in Article 9 of the agreement. Finally, we can expect an important debate on the end of the ILO sunset clauses in the agreement.

The effect of the agreement will now be felt slowly and it will be interesting to see the next steps by investors, states and arbitration tribunals in internal EU investment disputes.