Table of Contents: I. Setting the scene. – II. Analysis of the legal framework set out in EU investment agreements. – III. The role of the claimant and of the arbitral tribunal: is there a possibility to set aside the determination of the respondent made by the EU? – IV. The regulation on financial responsibility. – V. Conclusions.
Abstract: The academic debate on the international responsibility of the EU has flourished in recent years. Much ink has been spilled on the purported unsuitability to the EU of the rules on the responsibility of international organisations as codified by the International Law Commission (ILC). These rules are often criticised for having failed to take into due account the specific characteristics of a sui generis legal actor such as the EU. This friction becomes particularly acute when the EU and the Member States enter into an international agreement that includes a dispute settlement mechanism (IDS). In order to settle a dispute, an IDS would have to decide who acts as respondent and, as a consequence, bears international responsibility. Such decision may, in turn, directly or indirectly affect the autonomy of the EU legal order as defined by the case-law of the European Court of Justice over the years. For this reason, the EU has been attempting to devise tailor-made solutions aimed at preventing that an IDS established by an agreement to which it is a party alongside its Member States may make decisions on questions that would endanger the said autonomy. The aim of this article is to analyse the mechanism concerning the determination of the respondent party laid down in EU investment agreements (IAs) for the settlement of Investor-State disputes. It is argued that such determination amounts to an implicit acknowledgment of the international responsibility vis-à-vis the claimant on the part of the designated party. Furthermore, the article points out that EU IAs, with their internalisation of issues concerning international responsibility, seem to represent an excellent illustration of how IDS to which the EU is a party should be devised, and that the solution therein adopted should become EU’s standard position when it comes to participating to IDS. To this end, the development of a constant and consistent practice may eventually give rise to the long-awaited “special rule” of International Law.
Keywords: EU Law – investment agreements – international responsibility – TTIP – CETA – dispute settlement.
* Lecturer in EU Law, Faculty of Public Management, Law & Safety, The Hague University of Applied Sciences, firstname.lastname@example.org.