Onder 5.29. Rechtbank Den Haag 20 april 2016

The defendants can also not successfully derive an argument from the context of paragraphs 1 and 2 of Article 45 ECT. In referring to that context, they first and foremost allude to Article 45 paragraph 3 ECT, which contains an arrangement for the termination of the provisional application of the ECT, and for the provisions of Parts III and V to remain in effect with respect to any investments made in the territory of the state concerned during such provisional application for twenty years following termination of the provisional application. The defendants argue that if Article 45 paragraph 1 ECT would allow a Signatory to dodge provisional application at any given time and with immediate effect, the detailed provisions of Article 45 paragraph 3 ECT would not have any effect. The court rejects this argument. First, the defendants forget that material conditions are attached to an invocation of the Limitation Clause – unlike the termination in Article 45 paragraph 3 ECT – namely conflict between a Treaty provision and national law. Furthermore, the Russian Federation rightly argues that there is no incompatibility. With the express reference to the obligation on the Signatory under the first paragraph to apply Parts III and V, Article 45 paragraph 3 under b ECT limits the continued effect of the Treaty provisions in the same way as the Limitation Clause.

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