An interesting follow-up question is why the Commission is targeting the UK, which after the end of the transitional period on 31 December 2020 will no longer have to comply with EU law. The Withdrawal Agreement (“WA”) does not affect its BKT and does not contain a draft free trade agreement between the EU and the UK ISDS. The denunciation of the EU`s (intra-) UK`s ILO now, the elimination of ISDS in the “old style” and paves the way for EU-UK investment rules on EU terms. However, the UK seems to have an incentive not to end its intra-EU DTS, which will soon become extra-EU NTTs. It would be more advantageous to keep these NTBs in force than to (renegotiate) new investment standards with the EU. The United Kingdom could therefore try to “turn the clock”. In accordance with Articles 92 to 95 and 87 to 89 AV, the Commission and the ECJ retain jurisdiction for administrative and judicial proceedings initiated before 31 December 2020. Therefore, the Commission could continue to refer the case to the ECJ after the transition period, but the ECJ would then only be empowered to rule on the UK`s conduct in the past, while it is subject to EU law. Nor could it order a certain performance to end it for the future. Perhaps the UK accepts this risk in order to keep its investors internationally protected among the former BITs? It should be noted that the repeal agreement also claims to put an end to the so-called “sunset” clauses contained in the intra-EU COMMUNITIES. These clauses extend the validity of the ILO concerned for a further period after the end of the ilo in respect of investments made before its cessation. So far, case law does not seem to provide a clear answer as to the jurisdiction of investment arbitration tribunals when investors attempt to rely on a terminated sunset clause. In Magyar Farming v Hungary, the General Court stressed that the purpose of sunset clauses was precisely to `recognise the long-term interests of investors who have invested in the host State on the basis of contractual guarantees` (see also the decision in UP and CD Holding v Hungary).
Ultimately, the specific wording of each sunset clause will be decisive, although very few of them explain their termination mechanism (e.g. B Article 16 of the Czech and Slovak Republic – Denmark ILO). At present, there are more than 15 EU internal arbitration proceedings pending on the basis of BITs that will end after the entry into force of the repeal agreement. It remains to be seen whether the investment arbitration tribunals will still retain jurisdiction over these cases, since the approval of the arbitration has already been refined at the time of filing the investor`s request for arbitration. As regards the application of the ECT within the EU, the cancellation agreement, under its own terms, will not affect the 45 investment arbitrations underway within the EU under the ECT. (14) In the event of agreement on the terms of the agreement, the parties to the proceedings shall accept those conditions without delay in a legally binding manner. The conditions for comparison: 8. The intermediary shall be appointed by mutual agreement between the investor and the party concerned, who shall act as a respondent in the ongoing arbitration proceedings. He shall be chosen from among persons whose independence and impartiality are superior to any doubt and who possess the necessary qualifications, including a thorough knowledge of Union law. He must not be a national of the Member State in which the investment was made or of the investor`s home Member State and must not be in a situation of conflict of interest.
In the absence of agreement on the choice of the impartial mediator within one month of the opening of the conciliation proceedings, the investor or contracting party acting as respondent in the ongoing arbitration proceedings shall address to the Director-General of the Legal Service of the European Commission the appointment of a former Member of the Court of Justice of the European Union who, after hearing each party to the dispute, designate a person: who satisfies the criteria laid down in this paragraph. . . .