On 5 May 2020, 23 EU Member States signed an agreement for the termination of intra-EU bilateral investment treaties between EU Members (Termination Agreement).
The British Institute of International and Comparative Law (BIICL) hosted a webinar on 1 June 2020 to discuss legal and practical consequences of the Termination Agreement. The webinar featured presentations from representatives of the European Commission, an EU member state, academia and practitioners. This blog post summarizes the key points raised in the webinar.
Understanding the Termination Agreement
Following the introductory remarks of Prof Yarik Kryvoi from BIICL, Anne-Françoise Melot from the European Commission explained what led to the Termination Agreement and the effect of the Agreement itself. The European Commission views intra-EU BITs and intra-EU investor-state dispute settlement as conflicting with the EU law mechanisms.
The need to resolve the inconsistency between European Law and international investment law has moved to the forefront following the 2018 Achmea judgment of the Court of Justice of the European Union which affirmed the incompatibility of ISDS in intra-EU BITs and EU law.
Already before the Achmea judgement, the European Commission initiated a number of infringement proceedings against various EU states. It launched infringement proceedings in May 2020, including against the United Kingdom, which is bound to apply European Union law during the transition period. This inconsistency led several EU Member States to take steps towards resolving the clash between EU law and intra-state BITs by signing a plurilateral agreement terminating individual agreements between them.
The Termination Agreement essentially implements the Achmea judgment. Once the EU Member States signatories ratify the agreement, their intra-EU bilateral investment treaties (BITs) will be formally removed from national legal orders. 23 of 27 Member States signed the Termination Agreement, with the exception of Austria, Finland, Ireland and Sweden. However, regardless of whether they signed the Termination Agreement, all EU States and the UK remain under the obligation to remove intra-EU BITs due to its incompatibility with European Union law.
The Termination Agreement aims at depriving all intra-EU BIT clauses, including sunset clauses, of their legal effect. It clarifies that arbitration clauses in those treaties cannot serve as the legal basis for intra-EU arbitration proceedings. In regards to pending arbitration cases, the Termination Agreement provides for transitional measures, which include stimulating amicable dialogue between the investor and the states and allowing the investors to access national courts to protect their rights.
According to Anne-Françoise Melot, following the termination, all investors already benefit from protections based on the Treaty for the Functioning of the European Union (TFEU). To maintain investor protection, the Commission Work Programme 2020 aims at improving and strengthening investment protection through a comprehensive policy on intra-EU investments. The programme aims at filling gaps and modernising EU rules protecting intra-EU investments, improving the enforcement of these rules when disputes between investors and Member States arise and introducing measures to facilitate and promote cross-border investments in the EU.
In that vein, the Commission has launched a public consultation as well as inception Impact Assessment to explore various solutions to strengthen protection of cross-border investors within the European Union as well as to obtain feedback thereon from stakeholders.
Many states, such as the Czech Republic, have demonstrated support for abolishing intra-EU BITs. As explained by Anna Bilanová from the Ministry of Finance of Czech Republic, their government has in previous cases asserted that intra-EU BITs did not apply to disputes initiated by investors from other EU Member States. Having already terminated eight of its intra-EU BITs, the other 13 BITs between the Czech Republic and other nations will no longer have any effect after the Termination Agreement.
Advantages of the Termination Agreement
Anna Bilanová noted that the Termination Agreement would erase substantive differences caused by intra-EU BITs which in the past discriminated between investors from the different EU Member States. This agreement has become a politically feasible instrument for eradicating such differences between the 23 Member States signing the agreement.
The Termination Agreement has also addressed the fragmented nature of intra-EU BITs. As a result of this agreement, investors will make less use of investment arbitration and instead rely on domestic remedies in national law as well as implementing EU law. The Preamble of the Termination Agreement provides for intense discussions about the investment climate within the European Union.
According to Anna Bilanová, at the moment it is difficult to assess the whole impact on the investment climate. Some investors might rely on investment agreements or other contractual obligations with the Member States. Some investment arbitrations are seated in jurisdictions outside of the EU and the stance of courts there on the Achmea CJEU decision is yet to be fully known. She also pointed out that the European Union (and the Member States) were currently evaluating the investment climate and invited the audience to participate in these discussions.
Criticisms of the Termination Agreement
The Termination Agreement received a fair share of criticism, particularly because it deprives investors of effective remedies against host states. For instance, a potentially undesirable consequence of this measure is that it drives EU investors to select non-EU jurisdictions as their seat of arbitration, which may result in tribunals not applying mandatory EU law provisions.
Professor Matthew Happold from the University of Luxembourg argued that the Termination Agreement saw the participating EU Member States trying to both have their cake and eat it. On the one hand, the Agreement relies on the international law rules to terminate the parties’ intra-EU BITs (and the effects of their sunset clauses) by mutual agreement. On the other, it relies on EU Law (as expounded by the ECJ in Achmea) to say that the arbitration clauses of those BITs are already without effect.
But international law includes a rule on non-retroactivity and the arbitral jurisprudence has been clear: BITs’ arbitration clauses contain an offer to arbitrate which is perfected when a qualified investor accepts a State party’s offer. Moreover, the hostility to BITs displayed in the Termination Agreement means that the alternatives it provides to investors party to ‘Pending Arbitration Proceedings’ are unattractive, amounting to no more than permitting them to have their claims determined by application of EU and/or national law.
As a result, Professor Happold suggested that applicants in ‘Pending’ and ‘New Arbitration Proceedings’, particularly those proceeding under the ICSID Convention, might consider it better to continue and seek enforcement of awards outside the EU. The Termination Agreement, he concluded, would not see the end of intra-EU ISDS, albeit it marked the beginning of the end.
Professor Happold also addressed how the Termination Agreement dealt with ‘sunset clauses’. Here, he did consider that the Agreement was effective. Whatever their wording, the effect of such clauses could be terminated by mutual agreement, which is what the Agreement did. Claims that BITs gave rights to investors were irrelevant, as whatever rights investors gained were conferred on them by the treaty parties. If the parties always remained able to terminate sunset clauses by mutual agreement, investors could never assume that they would apply except in cases of unilateral denunciation.
Charles Claypoole from Latham & Watkins contributed to analysing the practical impacts of terminating intra-EU BITs. According to him, it was questionable whether the EU Treaties would provide equivalent protection to investors as the BITs provided. The investors may lack confidence in the ability of domestic courts to effectively remedy state breaches. This lack of confidence in domestic courts is what drove states to sign BITs in the first place.
Charles Claypoole also cited several examples to demonstrate the legitimate concerns of investors regarding judicial independence in various EU member states and the risk of compelling investors to bring claims before courts not seen to be impartial. This could cause investors to resort to corporate restructuring and investing through non-EU states to benefit from protections offered by international investment agreements.
Further practical challenges may also result from the transitional measures contained in Articles 9 and 10 of the Termination Agreement. Article 9 requires facilitators under the “structured dialogue” procedure to have an in-depth knowledge of EU law. This requirement is not an easy fit with the fact that most non-EU investment tribunals have refused to consider EU law in rendering their awards, which may make the awards easier to enforce in non-EU jurisdictions.
Article 10 of the Termination Agreement provides that investors in pending arbitrations are entitled to access domestic courts. However, this entitlement is conditioned upon investors waiving their rights under BITs. That can be seen as a drastic surrender of extensive investment protections contained in investment treaties.
While investors in pending cases may try to negotiate an amicable settlement, the likelihood of favourable settlements is low as states have little incentive to agree to pay compensation, and are more likely to engage in a ‘race to the bottom’ because investors were deprived of effective remedies under international law. This puts the investors into a much weaker bargaining position. Therefore, many practitioners think that the Termination Agreements may lead to more litigation and dissatisfaction for investors.
Beginning of the end of intra-EU ISDS?
During the Q&A session, the participants discussed various topics ranging from legal uncertainty, the apparent contradiction between not reopening closed cases and discontinuing pending cases, corporate restructuring, the EU Commission’s infringement proceedings.
It has been argued, that some of these practical challenges of expanding intra-EU BIT protections to investors from all states and treating them all with the highest standard expressed in a BIT could have alleviated different treatment of investors from various EU member states. Some thought that could have been a better solution compared to removing all protections offered to investors.
The participants seemed to agree that the Termination Agreement marked the beginning of the end of ISDS between EU Member States. While various authorities diverge on whether the investor protection will be adequate without intra-EU BITs, much will depend on future multilateral negotiations and the actions of Member States in ratifying this agreement and removing intra-EU BITs. It is the interpretation of EU protections by domestic courts that will give shape to investment protection in the post-Termination Agreement era.
Naina Gupta and Yarik Kryvoi
British Institute of International and Comparative Law