Termination of bilateral investment treaties between EU Member States
On 5 May 2020, the majority of European Union Member States (including Italy) signed an Agreement for the termination of bilateral investment treaties (BITs) within the European Union.
This Agreement implements the principles established by the famous ruling of the Court of Justice of the European Union (CJEU) of March 2018 – “Achmea case” – in which the Court had declared that arbitration clauses between investor and State in bilateral intra-EU investment treaties are incompatible with the EU treaties.
The main reasons that led the CJEU to affirm the above principle consists in the fact that arbitration as a dispute resolution mechanism is not “an element of the Union’s jurisdictional system”, and, consequently, the preservation of the proper character of the system established by the Treaties cannot be guaranteed by a subject (arbitratral tribunal) that does not have access to the procedure for preliminary rulings under Article 267 of the Treaty on the Functioning of the European Union.
With the entry into force of the Agreement of 5 May 2020, signed by the 23 Member States of the Union (excluding Sweden, Austria, Finland and Ireland), the bilateral investment treaties existing on today between the signatory states of the Agreement will cease to exist, as well as the sunset clauses of the treaties already terminated.
As a result of this Agreement, the arbitration clauses contained in these bilateral treaties are declared invalid and, therefore, shall not serve as legal basis for new arbitration proceedings. The Agreement does not affect arbitration proceedings concluded with a final award already enforced, nor settlement agreements reached in arbitration proceedings commenced before 6 March 2018 (the date of the ruling in the Achmea case).
With regard to pending proceedings, the Agreement establishes transitional measures that provide for the possibility of initiating a “structured dialogue” conducted by an “impartial facilitator” who shall take due account of rulings by the CJEU or a national court as well as of decisions by the European Commission which have become definitive. The investor is given the right to bring an action before national courts against the measure contested in pending arbitration proceedings, even if the national time limits for such action have expired, provided that the investor withdraws the pending arbitration proceedings.
The Agreement is subject to ratification, approval or acceptance and will enter into force 30 days after the date on which the Secretary General of the Council of the European Union receives the second instrument of ratification, approval or acceptance.
A number of questions remain open as to what alternatives to arbitration in the field of investment within the European Union might be possible, and whether the national judicial systems of the Member States (often very different from each other) are able to provide adequate protection of the investments at European level. The main criticality of the solution proposed in the Agreement is that investors will be forced to go to the courts of those same States that have adopted the measures that are detrimental to them.