A new step has just been taken in France concerning the termination of intra-European bilateral investment treaties.
As you may recall from a previous article we published in October 2020, twenty-three EU Member States signed an agreement for the termination of intra-EU bilateral investment treaties on 5 May 2020. Such agreement is a direct consequence of the 6 March 2018 Achmea v Slovak Republic landmark ruling under which the European Court of Justice ruled that arbitration clauses contained in intra-European Bilateral Investment Treaties (BITs) were contrary to EU law.
A bill authorising the ratification of such European agreement was introduced by the French Minister for Europe and Foreign Affairs to the French Council of Ministers and to the Senate on 13 January 2021.
Once this agreement is finally ratified, all bilateral investment treaties concluded by France with other EU Member States will be terminated and it will no longer be possible to initiate arbitration proceedings based on these treaties.
However, it is important to note that the agreement also introduces transitional measures for arbitration proceedings initiated before 6 March 2018. Proceedings settled before 6 March 2018 will not be affected by the termination on bilateral investment treaties. As for pending proceedings initiated before 6 March 2018, parties face two options: (i) amicable settlement under an ad hoc structured dialogue mechanism or (ii) adjudication by the courts of the Member States involved in the arbitration proceedings.
Hence, facing new and continuous developments in EU investment treaties stemming from the Achmea judgement, parties should always seek proper legal advice from specialized lawyers in the field.
This article was written by Andre Gabbard and Fatou Hondier