Interestingly, the repeal agreement only requires ratification by two Member States to enter into force. Provisional application of the Repeal Agreement is also foreseen. The moderator must enter into a settlement agreement within six months, but the parties may agree on a longer period. It should be noted that any conciliation agreement must take into account the judgments of the Court of Justice of the EU as well as certain decisions of the European Commission. The latter is apparently intended to ensure that the European Commission`s state aid decisions, such as those in the famous Micula case, are not ignored by the moderator. Following their January promise, member states negotiated a few weeks ago, under the supervision of the European Commission, a plurilateral agreement to end the intra-EU BIMO (termination agreement). Essentially, the cancellation agreement resolves two issues: the intermediary is chosen by mutual agreement between the investor and the Member State concerned. It is interesting to note that the moderator must not only be independent and impartial, but must also have a thorough knowledge of EU law, but he or she must not have a thorough knowledge of investment law. If the parties to the dispute do not agree on a mediator, a choice authority, left in brackets in the draft text, appoints the mediator. The repeal agreement simply stipulates that all intra-EU ESOs listed in an annex are denounced by that agreement.
In addition, it is also stated that sunset clauses contained in intra-EU NTBs “have no legal effects”. Prima facie puts a definitive end to all pending and new arbitration proceedings initiated after Achmea, with very limited transitional measures which, moreover, would be particularly unattractive to investor-complainants. Interestingly, the cancellation agreement does not explain what will happen to the dispute in the absence of a settlement agreement. Can the investor continue the arbitration proceedings or will the dispute end suddenly? While the text of the cancellation agreement has not yet been officially published, a draft contract has been disclosed and used for the following analysis. The cancellation agreement stipulates that all intra-EU-ILO arbitration proceedings concluded before the Achmea judgment, i.e. . . .