Agreement For The Termination Of Bilateral Investment Treaties

April 7, 2021

Agreement between the Government of the Kingdom of Belgium and the Government of the Grand Duchy of Luxembourg, on the one hand, and the Government of the People`s Republic of Poland, on the other, on the promotion and mutual protection of investments, in which it is agreed that this agreement does not address the issue of the compatibility of the material provisions of bilateral investment agreements within the EU with the EU`s Sunset Clause treaties. which extends for a further period the protection of investments made before the termination date of this contract. The whistleblowing agreement is subject to the ratification requirements of each Member State`s national legislation. The agreement will enter into force when the second ratification is tabled with the Secretary General of the Council of the EU. For each Member State, the agreement becomes mandatory 30 days after the Member State has submitted its ratification. In practice, this means that the whistleblowing agreement is its instrument of ratification for every internal bit of the EU 30 days after the last of the States Parties in this bit. The termination agreement gives effect to the Judgment of the Court of Justice by terminating all intra-EU bits between the signatories and confirming that the arbitration clauses contained in these ILOs are not applicable. The termination agreement does not affect the arbitration proceedings concluded before March 6, 2018 (the date of Achmea) until, on March 6, 2018, there has been no challenge, freezing of land, nullity or enforcement procedure (or similar) and the sentence has been executed before that date. On the other hand, the termination agreement requires Member States to inform the arbitration tribunals of new or ongoing arbitration procedures (including those in which legal proceedings were closed before 6 March 2018, but where the enforcement procedure is under way) that the compromise clause contained in the applicable internal EU bit cannot be used as a legal basis for these proceedings.

The termination agreement provides for a "structured dialogue" between the parties involved in the pending arbitration proceedings in order to reach a transaction. However, the investor must not only suspend the proceedings against the state as a precondition for this "structured dialogue", but there is no obligation for the state to enter into a transaction agreement (or "structured dialogue"). In addition, where the Member State concerned is involved in legal proceedings concerning an arbitration award on the basis of an arbitration decision on the basis of an internal DT decision at the UNION, it must ask the competent national court (including a third country) to quash the award, quash it or refrain from recognising it and applying it.

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