Sunset Clauses in International Law and their Consequences for EU Law
PE 703.592
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pursue arbitration, would be understood as “more favourable to the Investor”, insofar as the
EU Treaties
are interpreted to prohibit that avenue of dispute resolution’.
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6.1.2.
Substantive objections
Substantive objections depend on the facts of each dispute. In relation to the Paris Agreement, it is
possible to argue along the lines that the ECT contains in the preamble an interpretation principle
granting priority to the Paris Agreement enacted under the auspices of the United Nations Framework
Convention on Climate Change. Alternatively, it is possible to argue that there is a normative conflict
between the
ECT and the Paris Agreement, and therefore the latter treaty as
lex posterior
shall prevail.
In fact, Article 26 paragraph 6 of the ECT instructs investment tribunals to resolve the dispute by
applying relevant rules and principles of international law.
242
In relation to this argument, it is anyone’s
guess whether or not, that the investment tribunals would find that there is a normative conflict
between the ECT and the Paris Agreement, and second that the Paris Agreement prevails. However, in
both decisions mentioned above,
Eskosol
and in
Addiko Bank v Croatia
,
it is noteworthy that the
investment tribunals rejected claims that the EU Treaties and BIT regulated the same subject matter,
thus the normative conflict between the EU Treaties and BIT was avoided. Such stance from the
investment tribunals comes to confirm that in international law normative conflicts between two
international treaties are subject to a narrow interpretation.
Having said that, it is possible that investment tribunals take into account the fact that EU Member
States did not comply with the ECT obligations (to respect existing investments for instance in relation
to fossil fuel) because they addressed ‘imperative goals such as the protection of the environment.
Possibly this might lead to an
award in favor of the investor, however without compensation, and in
the best case scenario it could lead to an award in favor of the host state. Overall, the prospect of
adjudication before investment tribunals is not certain and it is possible to expose the Member States
of the EU, and the EU into hefty compensations.
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