2. Transactional proceedings can only be initiated within six months of the end of the bilateral investment contract covered by Article 2 or 3 of this agreement, on the basis of which the pending arbitration procedure was initiated by filing an application in accordance with paragraph 1 of this article. The signatories to the termination agreement are Belgium, Bulgaria, Croatia, the Republic of Cyprus, the Czech Republic, Denmark, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia and Spain. On 24 October 2019, EU member states reached a multi-lateral agreement to end bilateral investment agreements within the EU. The agreement follows statements made on 15-16 January 2019 on the legal consequences of the Court of Justice ruling in the Achmea case and on the protection of investments in the European Union, in which Member States pledged to end their internal EU BIT. With regard to the effects of Achmea, the question arises as to whether the parties to an internal bit of the European Union can later agree that the isYS provision of the contract was not applicable before the conclusion of the (later) ILO termination agreement if that agreement infringes on the investment rights conferred on investors by that bit. The answer to this question may differ, among other things, from the date the investment was made, the date on which the alleged violation of the ILO was committed and the time when arbitration proceedings were initiated. With regard to the pending arbitration procedure, the standard position of international law is that jurisdiction cannot be tainted by facts that did not exist at the time of the transfer of jurisdiction to the competent court. Arbitration proceedings under the Agreement on the Settlement of Investment Disputes between States and Nationals of Other States (here is the ICSID Agreement) lead to another complexity, as the ICSID agreement does not allow a contracting state or the complainant to unilaterally revoke its consent to arbitration as soon as it has been issued. It remains to be seen how the arbitration tribunals will respond to this new development. “Final arbitration” reads those that ended with a settlement agreement or final arbitration award before March 6, 2018, when: a) the award was executed before that date and on that date, no review, freeze, nullity, review or execution procedure was during or b) the award was quashed or cancelled before the contract came into force. These procedures are not affected by the termination agreement and cannot be reinstated. (3) With a view to greater security, it is stated that this agreement does not allow for the formal termination of the bilateral investment agreement between Germany and Croatia to revive the ILO between Germany and the former Federal Socialist Republic of Yugoslavia (SFRY) in relations between Germany and Croatia.
This is without prejudice to the applicability of the ILO between Germany and the former SFRY in relations between Germany and certain countries formed in the field of the former RFJ which are not EU Member States. 8. The mediator is appointed by mutual agreement between the investor and the relevant contracting party, who act as respondents in the pending arbitration proceeding. He is chosen from among those whose independence and impartiality are beyond doubt and who have the requisite qualifications, including an in-depth knowledge of EU law.