AFTINET submission to reviews of ISDS in agreements with Egypt and Eastern European countries
The AFTINET submission reviews the latest evidence against investor rights to sue governments, known as Investor-State Dispute Settlement (ISDS). The submission recommends that Bilateral Investment agreements with Hungary, Poland, Czechia, Lithuania and Romania should be terminated without sunset clauses, which preserve existing investor rights to sue after agreements are terminated.
Following the Court of Justice of the European Union (CJEU) Achmea judgment in 2018, which found ISDS provisions to be incompatible with EU law, EU governments signed a plurilateral agreement to terminate over 130 intra-EU BITs, including cancelling sunset clauses which provide for disputes from existing investors to continue after agreements have been terminated. Australia and the EU are in the process of finalising negotiations for the Australia-EU FTA, which has an investment chapter without ISDS.
Given the updated evidence against ISDS, Australia’s policy against ISDS and the EU termination of intra-EU BITS and their sunset clauses the EU and Australia should terminate these five agreements including their respective sunset clauses.
The Egypt -Australia BIT is the only investment agreement between the two countries. Consistent with the evidence against ISDS the Australian government should remove ISDS from the agreement with Egypt and terminate its sunset clause. This would preserve general investment provisions without ISDS.
The full submission is here.
