The Termination Treaty affirms that investor-State arbitration clauses in intra-EU BITs between signatory States are contrary to EU law. National courts and investment treaty tribunals will need to address the wide-ranging implications of the Termination Treaty on both pending and future proceedings under the affected BITs, including at the enforcement stage.
- Future proceedings: If the termination of sunset clauses is applied, investors will no longer enjoy rights under the affected BITs, including the right to commence new investor-State arbitrations for prior breaches.
- Pending arbitrations: Member States will intensify efforts to resist jurisdiction of arbitral tribunals under affected BITs. If the arbitration was commenced before 6 March 2018, when the Achmea judgment was issued, investors will have certain options, including to negotiate a binding settlement or to withdraw the proceedings and pursue remedies before the national courts of the signatory Member States, even if applicable limitation periods have expired.
- Enforcement proceedings: Investors seeking to enforce awards or settlement agreements under the affected BITs before national courts will continue to face arguments that such awards and settlements are unenforceable, which will be amplified by the entry into force of the Termination Treaty.