The treaty deals largely with two issues: (1) more details on the removal of existing internal EU bits and (2) the handling of new, pending and closed arbitration procedures. Nevertheless, the contract imposes a retroactive effect on certain ongoing arbitration proceedings, defined as « new arbitration procedures, » i.e. those « started on March 6, 2018 or after March 6, 2018 » (Article 1). Article 5 states that « arbitration clauses [in the EU`s internal bit] do not serve as a legal basis for new arbitration procedures. » Therefore, between 6 March 2018 and the entry into force of this treaty, arbitration procedures under internal EU bits will be deemed null and void. The European Commission`s headwinds to internal investment arbitrage within the EU were finally approved by Achmea 3. For greater security, this article constitutes a special agreement between the contracting parties within the meaning of Article 273 of the TFUE. 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 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. 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). This last point is the position of the EU Member States. On 15 January 2019, eu Member States signed a series of « declarations » informing investors and investor state courts that, based on their understanding of Achmea`s decision and its effects, « all investor-state arbitration clauses contained in bilateral investment contracts between Member States are contrary to EU law and are therefore not applicable. » In the same document, they decided to end all internal ILOs within the EU by the end of 2019.
The termination agreement, although somewhat late, stems from these statements.