On 5 May 2020, 23 Member States signed the Agreement on the Termination of Bilateral Investment Agreements within the EU (“Repeal Agreement”). In recent years, several states have denounced international investment agreements (ISAs) – some alarmed by the unexpected results in some investor-state cases, others simply update their EPAs when they conclude broader Economic Partnership Agreements. Attempts by states to destroy investors` rights by mutually terminating an IIA raise complex legal issues. As a threshold, investors are able to deduce legal “rights” from an IIA that may affect termination attempts. However, the granting of these rights under an IIA depends on their specific wording and context. If it is not possible to infringe an already existing offence, for which a formal right has already been exercised, it is not possible for States Parties to the IIA to agree to remove the rights of investors that have not yet been exercised, including with regard to an existing infringement. When termising an IIA on the basis of mutual consent, States Parties also have the power (and have been shown to exercise it) to repeal the so-called sunset clauses usually found in IIAs, thereby excluding from the Treaty all future rights, obligations and rights. This conclusion is based on fundamental rules of contract law and is not influenced by an alleged doctrine of “acquired rights” in international law or in international investment law. The annulment agreement implements the judgment of the Court of Justice of the European Communities of March 2018 (Achmea case), in which the Court held that investor-state arbitration clauses contained in bilateral investment agreements within the EU (“intra-EU BIT”) were incompatible with the EU Treaties. Here you will find information on the right to free movement of capital in the EU, including its legal basis, monitoring and investments outside the EU.

This Agreement shall enter into force on 29 August 2020. To check the status of ratification and adoption of the agreement by the parties, please consult the database of treaties and agreements. The signatories to the Treaty of Abrogation are Belgium, Bulgaria, Croatia, the Republic of Cyprus, the Czech Republic, Denmark, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia and Spain. . . .

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