With regard to the effects of Achmea, the question arises as to whether the parties to an internal bit of the European Union can later agree that the isYS provision of the contract was not applicable before the conclusion of the (later) ILO termination agreement if that agreement infringes on the investment rights conferred on investors by that bit. The answer to this question may differ, among other things, from the date the investment was made, the date on which the alleged violation of the ILO was committed and the time when arbitration proceedings were initiated. With regard to the pending arbitration procedure, the standard position of international law is that jurisdiction cannot be tainted by facts that did not exist at the time of the transfer of jurisdiction to the competent court. Arbitration proceedings under the Agreement on the Settlement of Investment Disputes between States and Nationals of Other States (here is the ICSID Agreement) lead to another complexity, as the ICSID agreement does not allow a contracting state or the complainant to unilaterally revoke its consent to arbitration as soon as it has been issued. It remains to be seen how the arbitration tribunals will respond to this new development. The Sunset clauses allow the ILO to remain in operation for a certain period of time after their termination and thus to protect investments made before the end of this ILO (often for an additional 10 or 20 years). 14. In the event of an agreement on the terms of the transaction, the parties to the proceedings will immediately accept these legally binding conditions. The terms of the transaction: 2. A transactional procedure can only be initiated within six months of the end of the bilateral investment contract covered by Article 2 or 3 of this agreement, on the basis of which the pending arbitration procedure was initiated by filing an application in accordance with paragraph 1 of this article. “Sunset Clause”, any provision of a bilateral investment contract that extends for a further period the protection of investments made before the termination date of the contract. The contract also contains provisions on pending arbitration proceedings, i.e. arbitration proceedings that were initiated prior to Achmea and are not yet completed.
In such cases, Article 9 provides for the possibility for a party, investor or EU Member State to request a “structured dialogue”, but only within six months of the end of the relevant ILO. Article 9, paragraph 7, provides that such a procedure is “supervised by an impartial mediator in order to find between the parties an amicable, legitimate and fair settlement of the dispute being the subject of arbitration.” The transaction procedure is impartial and confidential and the intermediary enters into a transaction agreement within six months. However, contracting parties may agree to a longer period of time if they deem it appropriate. Referring to the above case [name of host Member State] in which the applicant is established and [name of the Defence Member State], the Arbitration Tribunal shares, within the EU, the following joint agreement, which is expressed in Article 4, paragraph 1, of the agreement on the termination of bilateral investment contracts between the Member States of the European Union. that with regard to pending arbitration procedures, the termination agreement provides for a “structured dialogue” between the investor and the EU Member State (Article 9). To access this amicable resolution mechanism, investors must withdraw their debts before entering into negotiations.