Sunset Clauses in International Law and their Consequences for EU Law
PE 703.592
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the treaty. In reality, the first sunset clause is sectional, as the treaty provisions are
set to expire only for
the Parties and future investors.
The second sunset clause usually of longer duration, is also a sectional sunset clause extending the
duration of the treaty provisions, namely in relation to the provisions with procedural and substantive
protection specifically for the investments already made before the termination of the treaty.
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Actually, this is the objective purpose of the second sunset clauses in investment treaties: ‘to confer
independent third party rights on investors’, as an investment tribunal has put it.
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Statistics from an OECD study show the practical implications of sunset clauses.
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In a random sample
of 1,896 treaties active during 2014, if a party have unilaterally withdrawn from the treaty in 2014:
•
More than 90 percent of these treaties would have their force extended protecting investors
until at least 2025;
•
More than 50 percent of these treaties would have their force extended protecting investors
until at least 2030; and
•
More than 25 percent of these treaties would have their force extended protecting investors
until at least 2034.
In reality, sunset clauses create a temporal safe harbor, which guarantees that the termination of the
treaty for the Parties, caused by unilateral withdrawal,
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will not affect their status. Overtime the
inclusion of sunset clauses in investment agreement became a uniform practice.
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3.5.2.
Legal certainty in the interplay between stability and flexibility
Investment treaties are designed with the promise to ensure that this system works for all
stakeholders,
namely the Signatory States and the investors. In essence, investment treaties contain a promise from
the Contracting Parties to safeguard their investment from policy changes and provide investors with
due process before an impartial tribunal. In nature, investment treaties are agreements between states
that favor third parties, the investors.
The incorporation of sunset clauses into multilateral or bilateral investment agreements does not
simply mark the minimum and the maximum duration of such agreements.
Still most importantly,
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