Following their Promise in January a few weeks ago, Member States negotiated, under the authority of the European Commission, a multi-lateral agreement to end the EU internal termination agreement. Essentially, the termination agreement regulates two issues: the termination contract simply stipulates that all internal EU bits listed in an annex are terminated by this agreement. In addition, it states that the “Sunset” clauses contained in the internal EU bit “have no legal effect”. It is interesting to note that the whistleblowing agreement only requires the ratification of two Member States to enter into force. In addition, the provisional application of the termination agreement is provided for. 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? Although the text of the termination contract has not yet been officially published, a draft contract has been disclosed and will be used for the analysis below. The intermediary is chosen by mutual agreement between the investor and the Member State concerned. It is interesting to note that the intermediary must not only be independent and impartial, but also have an in-depth knowledge of EU law, not an in-depth knowledge of investment law.

If the parties fail to agree on an intermediary, the authority vested with the power of the framework, left open in brackets in the draft text, appoints the mediator. The termination agreement stipulates that all intra-EU arbitration procedures concluded before Achmea, i.e. before 6 March 2018, are not affected. In other words, it does not retroactively provide for an arbitration procedure definitively concluded with a final arbitration award or a transaction agreement before Achmea. These include an arbitral award which has already been executed or carried out in the pending proceedings (opened before 6 March 2018), but which has not yet been definitively executed or executed when the investor undertakes not to initiate recognition, execution, execution or payment proceedings in a Member State or third country or , if such a procedure has already been initiated, to request the suspension. The intermediary obtains a transaction agreement within six months, but the parties may agree to a longer period. It should be noted that any transaction agreement must take into account the judgments of the European Court of Justice as well as the concrete decisions of the European Commission. This last point seems to be aimed at ensuring that decisions on the European Commission`s state aid, as in the famous case of Micula, are not ignored by the Ombudsman. Prima facie, the agreement puts a definitive end to all current and new arbitration proceedings initiated in Achmea, with very limited transitional measures which, moreover, are supposed to be particularly unattractive to investors and complainants. In the case of arbitration proceedings before the International Centre for the Settlement of Investment Disputes (ICSID), Article 25 of the ICSID convention provides better protection by explicitly preventing a party from unilaterally withdrawing from this arbitration procedure. Instead, a parallel procedure could develop, following the example of Lithuania, which recently invoked the agreement to justify its counter-action in an ICSID arbitration procedure under way in 2016, Veolia et al.

in its local courts. Therefore, it seems that this is a very limited opportunity for investors to make their case before the national courts of the Member States, which they could have done anyway, but who deliberately chose not to do so. Finally, the termination agreement provides that the settlement procedure is impartial and confidential.