IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs
10
PE 703.592
as certain treaty provisions will still apply even after the Treaty’s termination for the withdrawing
contracting party (in terms of typology, this is a sectional sunset clause). This is the so-called
entrenchment effect of sunset clauses. Secondly, the ECT is a multilateral treaty with a very rigid
amendment procedure, which empowers the entrenchment effect of the Treaty.
Such entrenchment effect of the ECT provisions, for instance, results in the following: While the Court
of Justice of the European Union (CJEU) stated in the
Komstroy
decision
4
that investment arbitrations
at an Intra-EU level according to Article 26 of the ECT are incompatible with EU law, the arbitral tribunals
preserve the jurisdiction to solve disputes between an EU Member State - as a host state- and an
investor of another EU Member State concerning an investment made by the latter in the former EU
Member State.
Furthermore, the contracting Parties to the Paris Agreement are in a paradoxical position; on the one
hand, to preserve already made
investments in fossil fuels, and on the other hand to design nationally
determined contributions with the aim to reduce national emissions and adapt to the impacts of
climate change.
Within this context, the study will first examine sunset clauses in international law treaties from a
positive law perspective, and then conclude with the available policy options and recommendations
to disengage from the entrenchment effect of such clauses. In particular, this study will begin with the
definition of sunset clauses, and their scope. It will differentiate sunset clauses from duration clauses
and survival clauses. Then continue with the typology of sunset clauses and their legal effect. Following
this analysis, the study will examine different international treaties subject to sunset clauses and the
rationale for the inclusion of sunset clauses in international treaties. It will
explore the relationship
between EU law and the ECT as well as the relationship between ECT and the Paris Agreement, and will
conclude with different policy options. In relation to the policy options, it will begin with the policy to
remain in the ECT and raise procedural and substantive objections before investment tribunals, the
option of mutual termination of the ECT, the shortening of the duration of the 20-year sunset clause,
the revision of the ECT to make its substantive provisions more compatible with the spirit of the Paris
Agreement and finally the unconventional approach of modification of the ECT between certain
Parties, namely the
EU Members States and the EU, and then their withdrawal from the ECT.
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