Onder 5.94. Rechtbank Den Haag 20 april 2016

The provisions of Article 23 paragraph 2 FLIT, which is a supplement to the general rule of Article 23 paragraph 1 FLIT, do not affect this opinion. Based on this second paragraph, a treaty that must be ratified by federal law and which provides for the provisional application must be submitted to the Federal Parliament within six months. Although it should be ruled that provisional application of the arbitration clause was incompatible with the Constitution and the ensuing principle of the separation of powers from the outset – given the assessment framework of Article 45 paragraph 1 ECT and the significance attached therein to the Constitution – it is agreed that the provisional application was no longer in accordance with the Constitution after the six-month term. The notification requirement of Article 23 paragraph 3 FLIT, which makes the termination of provisional application conditional on the notification to the other states that have applied the treaty provisionally, does not alter this opinion. In its view (in 387 et seq. in the Interim Awards) that the six-month term is merely an internal requirement, the Tribunal insufficiently recognised the meaning of the Limitation Clause in this context, too. This clause concerns incompatibility of the provisional application of the treaty provisions with Russian national law, including the Constitution. In short, in the absence of approval of the legislature, the Limitation Clause precluded a longer provisional application of Article 26 ECT than the six months. In this context, the court refers to pages 39 and following of Nussberger’s extensive opinion and the Russian doctrine discussed therein, as well as to the opinion of Avakiyan of 29 June 2006. In this context, independent significance can also not be attached to Article 45 paragraph 3 ECT discussed in this judgment under 5.29. The court also does not share the opinion of the Tribunal in this area. As has been considered above, with the explicit reference to the first paragraph, Article 45 paragraph 3 ECT restricts the continued application in the same manner as the Limitation Clause.

$ curl -s https://bron.page/api/v1/blobs/c41b7b536312fc28d662a84342c9ad14bf27e0adff7968e8433c5063474db641 | shasum -a 256