The intra-EU DTS in question were closed when at least one of the parties was not yet an EU Member State. Most of these non-EU states were then candidates for EU membership and had joined several EDPs, precisely because the EU had actively encouraged them to do so. Thus, the pre-accession treaty with Romania aimed “at the Member States and Romania concluding agreements on the promotion and protection of investments”. When these countries subsequently joined the EU, intra-EU IPTs allowed investors from one EU Member State to initiate investment arbitration proceedings against another EU Member State. In accordance with Article 6 of the Annulment Agreement, arbitral awards rendered in the context of a concluded arbitration procedure – i.e. arbitration proceedings initiated on the basis of an INTRA-EU-BIT in which a final arbitral award is rendered before 6 The annulment agreement is without prejudice to the annulment decision of 1 March 2018 (date of the Achmea decision) and in which the arbitral award was duly enforced and without challenge p endante. 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.
The contract also contains provisions concerning ongoing arbitration proceedings, i.e. arbitration proceedings initiated before the Achmea judgment and which have not yet been completed. In such cases, Article 9 provides for the possibility for each party, an investor or an EU Member State, to request a “structured dialogue”, but only within six months of the end of the ILO concerned. Article 9(7) provides that such a procedure shall be `supervised by an impartial mediator in order to find between the parties an amicable, lawful and fair out-of-court settlement of the dispute which is the subject of the arbitration`. The settlement procedure is impartial and confidential and the mediator has reached a settlement agreement within six months. However, the parties may agree on a longer period if they deem it appropriate. The Treaty largely addresses two issues: (1) for more details on the end of existing intra-EU bits and (2) the management of new, pending and concluded arbitration proceedings. The cancellation agreement states that all INTRA-EU-EU-BIT arbitration proceedings concluded before the Achmea judgment, i.e. before 6 March 2018, are not affected. In other words, it does not provide for retroactive effect for arbitration proceedings finally concluded before Achmea by a final arbitral award or settlement agreement. .