Sunset Clauses in International Law and their Consequences for EU Law
PE 703.592
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a treaty, do not activate the sunset clauses and the expiration of the treaty takes place with the mutual
withdrawal.
149
For instance, the Canada Model BIT 2021 in Article 57, paragraph 4 regulates the mutual termination
providing that ‘[t]his Agreement shall remain in force unless a Party delivers to the other Party
a written
notice of its intention to terminate the Agreement
.
The termination of this Agreement will be effective one
year after the written notice of termination
has been received by the other Party. In respect of
investments or commitments to invest made prior to the date of termination of this Agreement,
Articles 1 through 56, as well as paragraphs 1 and 2 of this article, shall remain in force for 15 years.’
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Accordingly, the one-year sunset clause is activated when a party submits a written notice of its
intention to terminate the Agreement and such notice is received by the other party, while the 15-year
sunset clause is activated once a year has passed from the day the other party received the written
notice of termination. In other words, sunset clauses are attached to the unilateral intention to
terminate the agreement.
E contrario
, the mutual agreement to terminate
the treaty is not regulated
by the agreement, and therefore, its regulation falls within the general framework of the VCLT.
According to Article 54 the termination may take place ‘at any time by consent of all the parties after
consultation with the other contracting States.’
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In like manner the ECT Article 47, which provides in paragraphs 2 and 3 that ‘(2) Any such
withdrawal
shall take effect upon the expiry of one year after the date of the receipt of the notification by the
Depositary, or on such later date as may be specified in the notification of withdrawal. (3) The provisions
of this Treaty shall continue to apply to Investments made in the Area of a Contracting Party by
Investors of other Contracting Parties or in the Area of other Contracting Parties by Investors of that
Contracting Party as of the date
when that Contracting Party’s withdrawal from the Treaty takes effect for
a period of 20 years from such date
.’ regulates the unilateral withdrawal from the agreement.
Accordingly, when Italy unilaterally withdrew from the ECT, investments already made in Italy by other
contracting Parties were covered by the protection of the ECT due to the activation of the sunset
clause.
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On
the other hand, in the hypothetical scenario that Signatory Parties of the ECT decided to
terminate the treaty, then the treaty would have concluded as if it had never existed.
In case a Contracting Party in a treaty withdraws or notifies its intention to withdraw, the sunset
provisions are triggered. Consequently, as it was accurately put, sunset clauses ‘tend to preserve all of
the provisions of an [investment treaty], both procedural and substantive, for the benefit of an investor
for a certain period after its termination’.
153
Procedurals and substantive rights mean that firstly, foreign
investors can procedurally invoke a claim before arbitral tribunals pursuant to the dispute settlement
provisions of the investment treaty with the automatic consent of the host state, and that secondly
149
On this issue, see also James D. Fry and Odysseas G. Repousis, ‘Intertemporality and international investment arbitration:
protecting the jurisdiction of established tribunals' (2015) 31 Arbitration International 213, 231 ff.
150
Canada Model BIT 2021 in Article 57 paragraph 4.
151
United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations,
Treaty Series, vol. 1155, Article
54 paragraph b.
152
See for instance, Hamburg Commercial Bank v. Italy Hamburg Commercial Bank AG v. Italian Republic (ICSID Case No.
ARB/20/3); Veolia Propreté v. Italy Veolia Propreté SAS v. Italian Republic (ICSID Case No. ARB/18/20) ; Rockhopper Italia
S.p.A., Rockhopper Mediterranean Ltd, and Rockhopper Exploration Plc v. Italian Republic, ICSID Case No. ARB/17/14.
153
Tania Voon, Andrew Mitchell, James Munro, Parting Ways: The Impact of Mutual Termination of Investment Treaties on
Investor Rights’ (2014) 29 ICSID Review 451, 456.
IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs
40
PE 703.592
foreign investors can rely on the provisions of the terminated treaty to base the substance of their
claims.
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However, some sunset clauses are drafted with ambiguity in a way for it to be possible to argue that
they are activated by both unilateral terminations and mutually agreed upon terminations.
To exemplify that, the Italy-Romania BIT was terminated by consent in 2010. The five-year sunset clause
was included in Article 11 which provided that ‘2) This Agreement shall remain in force for 10 years
from the date of completion of the legal procedures referred to in paragraph 1 of this article and shall
be renewed for a further period of five years, unless one of the two Parties denies it
By written notice,
one year before any expiry date, paragraph 1 of this article, and shall be renewed for a further five-year
period, unless one of the two Parties gives notice thereof in writing one year before Any expiration
date. 3) In the case of investments made before the expiry date of this Agreement, as provided for in
this Article 11, the provisions of Articles 1 to 1 shall remain in force for another five years after the above
mentioned dates. Article 11, the provisions of Articles 1 to 1) shall remain in force for another five years
after the above-mentioned dates.’
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Interestingly, a notice of arbitration was submitted in August 2012 during that five-year extension
period which led to
Stefano Gavazzi v. Romania
.
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However, the effectiveness of the sunset clause and
the extension of the protectionist regime for the extra period after the termination of the investment
treaty was not disputed.
Sovereign states can always terminate investment agreements and have the sunset clause expired in
advance. As Roberts clarifies, ‘Investors cannot argue that, in investing, they had a legitimate
expectation that the investment treaty would continue to cover their investment, at
least for the period
of the survival clause. Given the sovereign nature of states, such an expectation is not “legitimate” and
any argument based on it is circular’.
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