The Proceduralisation and Internalisation of International Responsibility Under Post-Lisbon Mixed IIPAs

Stegmann, Philipp Theodor

doi:10.1007/978-3-030-04366-7_4

Philipp Theodor Stegmann²¹

Part of the book series: European Yearbook of International Economic Law ((EYIELMONO,volume 6))

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Abstract

This chapter deals with the proceduralisation and internalisation of international responsibility of the EU and the Member States under post-Lisbon mixed IIPAs that provide for a mandatory respondent determination mechanism and render effective the provisions on respondent status of the REG. The proceduralisation of international responsibility under post-Lisbon mixed IIPAs joins an upcoming trend under mixed agreements, witnessed by the future mixed ECHR framework and the so-called ‘co-respondent mechanism’.

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Notes

1.
See on this trend Andrés Delgado Casteleiro (2013) The International Responsibility of the European Union – The EU Perspective: Between Pragmatism and Proceduralisation. 15 CYELS, pp. 563–586.
2.
For a description of the term ‘EU-Member State responsibility window’ and the scope of the constitutive effect on international responsibility of the determined respondent, see Sect. 4.3.2.
3.
See above Chap. 1, fn. 3.
4.
Ibid.
5.
Explanatory Memorandum to the REG, p. 5.
6.
See Tobias Lock (2012) End of an Epic? The Draft Agreement on the EU’s Accession to the ECHR. 31(1) YEL, p. 166; Delgado Casteleiro, above Chap. 3, fn. 36, pp. 108–111; Delgado Casteleiro, this chapter, fn. 1, pp. 581–583; Maarten Den Heijer (2013) Procedural Aspects of Shared Responsibility in the European Court of Human Rights. 4(2) JIntlDS, p. 372.
7.
See Article 3(2)(3)(5) Draft ECHR Accession Agreement.
8.
See Article 3(1)(b) Draft ECHR Accession Agreement: ‘[…] a co-respondent is a party to the case […]’; Explanatory Report to the ECHR Accession Agreement, para. 45.
9.
Article 3(7) Draft ECHR Accession Agreement reads: ‘If the violation in respect of which a High Contracting Party is a co-respondent to the proceedings is established, the respondent and the co-respondent shall be jointly responsible for that violation, unless the Court, on the basis of the reasons given by the respondent and the co-respondent, and having sought the views of the applicant, decides that only one of them be held responsible’.
10.
Explanatory Report to the ECHR Accession Agreement, para. 39.
11.
Protocol No 8 to the Lisbon Treaty [2010] OJ C 83/273; Explanatory Report to the ECHR Accession Agreement, para. 41.
12.
See Heliskoski, above Chap. 2, fn. 77, pp. 166 et seq and pp. 202–203 with further references to legal doctrine.
13.
It reads: ‘Any State Party may request an international organization or its member States which are States Parties for information as to who has responsibility in respect of any specific matter. The organization and the member States concerned shall provide this information. Failure to provide this information within a reasonable time or the provision of contradictory information shall result in joint and several liability’.
14.
Heliskoski referred to the provision as one of ‘optional standing’. See Heliskoski, above Chap. 2, fn. 77, p. 173.
15.
The procedural ad hoc mechanism in Article 18(3) of the Convention on the Conservation of European Wildlife and Natural Habitats [1982] OJ L 38, p. 3 reads: ‘In the event of a dispute between two Contracting Parties one of which is a member State of the European Economic Community, the latter itself being a Contracting Party, the other Contracting Party shall address the request for arbitration both to the member State and to the Community, which jointly shall notify it, within two months of receipt of the request, whether the member State or the Community, or the member and the Community jointly, shall be party to the dispute. In the absence of such notification within the said time limit, the member State and the Community shall be considered as being one and the same party to the dispute for the purposes of the application of the provisions governing the constitution and procedure of the arbitration Tribunal. The same shall apply when the member State and the Community jointly present themselves as party to the dispute’.
16.
Draft OECD Multilateral Agreement on Investment, OECD Doc DAFFE/MAI/DS(98)7/REV1, 22 April 1998.
17.
The exact language of Article D.6 is not public because the document containing the provision, Draft OECD Multilateral Agreement on Investment, Report of informal consultations on dispute settlement, OECD Doc DAFFE/MAI/DS(98)1, 23–24 February 1998, is classified.
18.
See Draft OECD Multilateral Agreement on Investment, Comment, OECD Doc DAFFE/MAI/DS(98)8/REV1, 22 April 1998, p. 39.
19.
See above Chap. 1, fn. 16.
20.
Kuijper, above Chap. 2, fn. 94, p. 224.
21.
Hoffmeister, above Chap. 2, fn. 243, pp. 736, 747; Nikos Lavranos (2011) Member States’ Bilateral Investment Treaties (BITs): Lost in Transition? 24 HYIntlL, p. 308.
22.
Tomuschat, above Chap. 2, fn. 10, p. 185.
23.
Delgado Casteleiro, this chapter, fn. 1, p. 573.
24.
Stephan W Schill (2013) The Relation of the European Union and its Member States in Investor-State Arbitration. In: Leon Trakman and Nicola Ranieri (eds.) Regionalism in International Investment Law. Cambridge University Press, pp. 379, 384; Heliskoski, above Chap. 2, fn. 77, p. 202; Delgado Casteleiro, this chapter, fn. 1, p. 569; Kuijper/Paasivirta, above Chap. 2, fn. 155, p. 69; Lavranos, this chapter, fn. 21, p. 308.
25.
Kuijper, above Chap. 2, fn. 94, p. 227.
26.
Dimopoulos, above Chap. 2, fn. 112, pp. 1700–1702; Stephan W Schill (2013) Luxembourg Limits: Conditions for Investor-State Dispute Settlement under Future EU Investment Agreements. In: Marc Bungenberg, August Reinisch, Christian Tietje (eds.) EU and Investment Agreements: Open Questions and Remaining Challenges. Nomos, p. 48; Schill, above Chap. 3, fn. 244, pp. 384, 386–387; Ulrich Karpenstein and Matthias Kottmann (2015) Prozessführung, Haftung und Regress in Schiedsstreitigkeiten auf Grundlage von EU-Investitionsabkommen. 26(7) EuZW, p. 259; Reinisch, above Chap. 2, fn. 45, pp. 151–155; see also Explanatory Memorandum to the REG, p. 7. See also in this respect Article 1(1) 2nd sentence REG: ‘In particular, the adoption and application of this Regulation shall not affect the delimitation of competences established by the Treaties, including in relation to the treatment afforded by the Member States or the Union and challenged by a claimant in investor-to-state dispute settlement conducted pursuant to an agreement’.
27.
Explanatory Report to the ECHR Accession Agreement, para. 62: ‘Apportioning responsibility separately to the respondent and the co-respondent(s) on any other basis would entail the risk that the Court would assess the distribution of competences between the EU and its member States’; ECHR: Answers to frequently asked questions (30 April 2013) Accession by the European Union to the European Convention on Human Rights, p. 4. See also Giorgio Gaja (2014) The ‘Co-Respondent Mechanisms’ According to the Draft Agreement for the Accession of the EU to the ECHR. In: Vasiliki Kosta, Nikos Skoutaris and Vassilis Tzevelekos (eds.) The EU Accession to the ECHR. Hart Publishing, pp. 345–346; Lock, this chapter, fn. 6, p. 165; Den Heijer/Nollkaemper, above Chap. 3, fn. 103, pp. 10, 18; Delgado Casteleiro, above Chap. 3, fn. 36, p. 109.
28.
Case 26/62 Van Gend en Loos [1963] ECR 1; Case 6/64 Costa ENEL [1964] ECR 593.
29.
Steffen Hindelang (2012) Circumventing Primacy of EU Law and the CJEU’s Judicial Monopoly by Resorting to Dispute Resolution Mechanisms Provided for in Inter-se Treaties? The Case of Intra-EU Investment Arbitration. 39(2) LIEcoI, pp. 183, 195–199.
30.
Case C-459/03 Commission v Ireland (Sellafield) [2006] ECR I-4635, paras. 122 et seq; Christoph Herrmann (2014) The Role of the Court of Justice of the European Union in the Emerging EU Investment Policy. 15(3–4) JWIT, p. 573; Hindelang, this chapter, fn. 29, pp. 183, 195–199; Steffen Hindelang (2011) Der primärrechtliche Rahmen einer europäischen Investitionsschutzpolitik: Zulässigkeit und Grenzen von Investor-Staat Schiedsverfahren aufgrund künftiger EU-Abkommen. WHI-Paper 01/11. www.whi-berlin.eu/tl_files/documents/whi-paper0111.pdf. Accessed 26 August 2018, pp. 12–13; Schill, this chapter, fn. 26, p. 40.
31.
Opinion 2/13 EU Accession to ECHR [2014] ECR I-2454, paras. 196–200 and in para. 198: ‘[…] thus creating a risk that the preliminary ruling procedure provided for in Article 267 TFEU might be circumvented, a procedure which […] is the keystone of the judicial system established by the Treaties’; see also Schill, this chapter, fn. 24, pp. 388 et seq; Markus Burgstaller (2012) Investor-State Arbitration in EU International Investment Agreements with Third States. 39(2) LIEcoI, p. 217; Hindelang, this chapter, fn. 30, p. 17.
32.
Case C-284/16 Slovak Republic v Achmea BV [2018] ECR 158, para. 55. See also Konstanze von Papp (2013) Clash of “autonomous legal orders”: Can EU Member State courts bridge the jurisdictional divide between investment tribunals and the ECJ? A plea for direct referral from Investment Tribunals to the ECJ. 50(4) CMLRev, pp. 1039–1082; Markus Burgstaller (2014) Dispute Settlement in EU International Investment Agreements with Third States: Three Salient Problems. 15 JWIT, pp. 561–565; Schill, this chapter, fn. 24, pp. 395–398. But see Jürgen Basedow (2015) EU Law in International Arbitration: Referrals to the European Court of Justice. 32(4) JIntlA, pp. 367–386, advocating the status of Arbitral Tribunals constituted under IIPA as ‘Courts’ or ‘Tribunals’ under Article 267 TFEU.
33.
Opinion 2/13 EU Accession to ECHR [2014] ECR I-2454, para. 182; Opinion 1/09 European and Community Patents Courts [2011] ECR I-0000; Opinion 1/91 Economic Area Agreement I [1991] ECR I-6079, paras. 39–40.
34.
Opinion 2/13 EU Accession to ECHR [2014] ECR I-2454, para. 182; Opinion 1/91 Economic Area Agreement I [1991] ECR I-6079, para. 40.
35.
See Schill, this chapter, fn. 26, pp. 37–54; Inge Govaere (2010) Beware the Trojan Horse: Dispute Settlement in (Mixed) Agreements and the Autonomy of the EU Legal Order. In: Christophe Hillion and Panos (eds.) Mixed Agreements Revisited – The EU and its Member States in the World. Hart Publishing, p. 192; Burgstaller, above Chap. 2, fn. 194, p. 216; Burgstaller, this chapter, fn. 32, pp. 561–565; Hindelang, this chapter, fn. 29, pp. 183, 195–199; Hindelang, this chapter, fn. 30, pp. 16–17.
36.
See Schill, above Chap. 3, fn. 244, pp. 386–387.
37.
Opinion 1/09 European and Community Patents Courts [2011] ECR I-0000, paras. 80–84, 89.
38.
Opinion 2/13 EU Accession to ECHR [2014] ECR I-2454, paras. 246–247.
39.
See above Sect. 3.2.3.
40.
Cf. Schill, above Chap. 3, fn. 244, pp. 386–387; Hindelang, this chapter, fn. 29, pp. 195–199.
41.
Opinion 1/91 Economic Area Agreement I [1991] ECR I-6079, paras. 34–36; Opinion 2/91 ILO Convention No 170 [1993] ECR I-1061; Opinion 1/00 European Common Aviation Area [2002] ECR I-3498, para. 12, 16, 21; Case C-459/03 Commission v Ireland (Sellafield) [2006] ECR I-4635. For a discussion of that case law, see Schill, this chapter, fn. 26, pp. 37–54.
42.
Opinion 2/13 EU Accession to ECHR [2014] ECR I-2454, para. 234.
43.
Ibid.
44.
Ibid, paras. 230–231.
45.
If a mixed treaty, such as UNCLOS, provides for a delimitation of obligations by means of a declaration of competence, international responsibility for a breach equally derives from the division of competences as laid down in the declaration. See above Chap. 3, fn. 151 et seq and accompanying text.
46.
Dimopoulos, above Chap. 2, fn. 112, p. 1701; Baetens/Kreijen/Varga, above Chap. 2, fn. 73, p. 1242.
47.
See above Sect. 3.2.2.
48.
See Article 3(7) Draft ECHR Accession Agreement. For the text, see this chapter, fn. 9.
49.
See this chapter, fn. 27.
50.
Opinion 2/13 EU Accession to ECHR [2014] ECR I-2454, paras. 218–231.
51.
Ibid, paras. 225, 230.
52.
Heliskoski, above Chap. 2, fn. 77, p. 202.
53.
Case C-284/16 Slovak Republic v Achmea BV [2018] ECR 158. For an in-depth analysis of the judgment, see Andrej Lang (2018) Die Autonomie des Unionsrechts und die Zukunft der Investor-Staat-Streitbeilegung in Europa nach Achmea. 156 BTransnatlWR and Steffen Hindelang (2018) The Limited Immediate Effects of CJEU’s Achmea Judgement. VerfBlog, 2018/3/09. https://verfassungsblog.de/the-limited-immediate-effects-of-cjeus-achmea-judgement/. Accessed 26 August 2018.
54.
Case C-284/16 Slovak Republic v Achmea BV [2018] ECR 158, paras. 57–59.
55.
Ibid, para. 41.
56.
Ibid, para. 42.
57.
Cf. Schill, above Chap. 3, fn. 244, p. 384; Schill, this chapter, fn. 26, p. 48; Dimopoulos, above Chap. 2, fn. 112, pp. 1689, 1696, 1700–1702.
58.
Cf. with respect to the compliance of the proceduralisation approach under the Energy Charter Treaty with the autonomy of EU law, Dimopoulos, above Chap. 2, fn. 112, p. 1702; Schill, above Chap. 3, fn. 244, p. 384; Schill, this chapter, fn. 24, pp. 384–390; Schill, this chapter, fn. 26, p. 48; Herrmann, this chapter, fn. 30, p. 583; Reinisch, above Chap. 2, fn. 45, p. 155; with respect to proceduralisation under mixed treaties in general, see Heliskoski, above Chap. 2, fn. 77, pp. 161–166, 200–202.
59.
Explanatory Memorandum to the REG, p. 7.
60.
See also Article 3.5 EU-Singapore IIPA, Article 6 Section 3 Investment Chapter EU-Vietnam FTA and Article 5 Section 3 Investment Chapter TTIP, all containing the same mechanism.
61.
See below Sect. 4.2.2.2.
62.
See below Sect. 4.2.2.2.5.
63.
See Sect. 6.1.
64.
Since the ECT Statement containing the respondent determination mechanism mentions the division of competences as the criterion for international responsibility under the ECT, it is likely that the division of competences would have been the criterion for determining the respondent. See fn. 16 for the text of the ECT Statement.
65.
Burgstaller, above Chap. 2, fn. 194, p. 206.
66.
See para. 3 Proposal Revised ECT Statement.
67.
Article 3.5(3) EU-Singapore IIPA contains the same default mechanism and exhibits the same wording except that the EU has two months to inform the claimant about the respondent in lieu of 50 days as under CETA.
68.
Hannes Lenk (2015) Investor-State Arbitration under TTIP – Resolving Investment Disputes in an (Autonomous) EU Legal Order. 2015:2 SIEPS Report. http://www.sieps.se/en/publications/2015/investor-state-arbitration-under-ttip-resolving-investment-disputes-in-an-autonomous-eu-legal-order-20152/Sieps_2015_2. Accessed 26 August 2018, p. 76.
69.
Cf. below Sect. 4.3.4.1.
70.
If instead of the default mechanism in Article 8.21(4) CETA the EU were to determine the respondent in due time pursuant to Article 8.21(3) CETA, the EU could have acted as respondent pursuant to Article 9(2)(a) REG in conjunction with Article 3(1)(c) REG in these instances.
71.
This conforms to Article 9(2)(b) REG.
72.
Cf. Tietje/Sipiorski/Töpfer, above Chap. 2, fn. 69, pp. 19–20; Baetens/Kreijen/Varga, above Chap. 2, fn. 73, p. 1225.
73.
Explanatory Memorandum to the REG, p. 7.
74.
Burgstaller, above Chap. 2, fn. 194, p. 206; Roe/Happold, above Chap. 2, fn. 39, pp. 174–175, 185; Happ, above Chap. 2, fn. 261, p. 78.
75.
See above Sect. 2.3.1.2.3.1.
76.
See Dolzer/Schreuer, above Chap. 2, fn. 280, pp. 254 et seq.
77.
Similar language can be found in Article 1122(1) NAFTA and Article 10.17 CAFTA.
78.
See McLachlan/Shore/Weiniger, above Chap. 2, fn. 166, pp. 52–55.
79.
Dolzer/Schreuer, above Chap. 2, fn. 280, pp. 258–259.
80.
Jan Paulsson (1995) Arbitration without Privity. 10(2) ICSIDRev-FILJ, pp. 232, 240–241.
81.
McLachlan/Shore/Weiniger, above Chap. 2, fn. 166, p. 55.
82.
Cf. Articles 6(3), 7(1), 10(1)(2) Section 3 Investment Chapter EU-Vietnam FTA, Article 3.6(2) EU-Singapore IIPA; Articles 5(4), 6(1), 7(1)(3) Section 3 Investment Chapter TTIP.
83.
For the text of the relevant part of the ECT statement, see Chap. 1 fn. 16.
84.
For the text of the Proposal Revised ECT Statement, see Chap. 1 fn. 17.
85.
For a detailed discussion of why the respondent determination mechanism both under the ECT Statement and the Proposal Revised ECT Statement does not bind investors, see Philipp T Stegmann (2017) The Application of the Financial Responsibility Regulation in the Context of the Energy Charter Treaty – Case for Convergence or “Square Peg, Round Hole”? 145 BTransnatlWR, pp. 12 et seq. See also Roe/Happold, above Chap. 2, fn. 39, p. 174; Keller/Schmitt in Horst G Krenzler, Christoph Herrmann and Marian Niestedt (eds.) (2018) EU-Außenwirtschafts- und Zollrecht, 11th edn. CH Beck, Article 4 Reg (EU) No 912/2014, para. 11.
86.
See above Sect. 2.3.1.2.3.1.
87.
See paras. 3, 4 Proposal Revised ECT Statement.
88.
For the extent of the binding effect of the respondent determination on the international responsibility of the determined respondent, see below Sect. 4.3.
89.
Heliskoski , above Chap. 2, fn. 77, p. 173; Roe/Happold, above Chap. 2, fn. 39, p. 174.
90.
See again for the entire text above Chap. 1, fn. 16.
91.
See para. 3 Proposal Revised ECT Statement.
92.
Cf. Tietje/Sipiorski/Töpfer, above Chap. 2, fn. 69, pp. 22–23.
93.
See David A R Williams (2008) Jurisdiction and Admissibility. In: Peter Muchlinski, Federico Ortino and Christoph H Schreuer (eds.) Oxford Handbook of International Investment Law. Oxford University Press, p. 919: ‘There has been no consistent approach to the distinction between jurisdiction and admissibility by investment treaty Tribunals’.
94.
In general on the concept of estoppel in international law, see Crawford, above Chap. 3, fn. 92, pp. 153, 643–645; Thomas Cottier and Jörg Paul Müller (2007) Estoppel. In: The Max Planck Encyclopedia of Public International Law. http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1401. Accessed 26 August 2018; Megan L Wagner (1986) Jurisdiction by Estoppel in the International Court of Justice. 74(5) CalLRev, pp. 1777–1804; Hector A Mairal (2013) Legitimate Expectations and Informal Administrative Representations. In: Stephan W Schill (ed.) International Investment Law and Comparative Public Law. Oxford University Press, pp. 413–452; Anthony d’Amato (2010) Consent, Estoppel, and Reasonableness: Three Challenges to Universal International Law. Northwestern University School of Law Scholarly Commons – Working Paper 102. http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1101&context=facultyworkingpapers. Accessed 26 August 2018.
95.
Article 6(4) Section 3 Investment Chapter EU-Vietnam FTA, Article 3.5(4) EU-Singapore IIPA and Article 5(5) Section 3 Investment Chapter TTIP have an almost verbatim language.
96.
Roe/Happold, above Chap. 2, fn. 39, p. 174.
97.
Emmanuel Gaillard and John Savage (1999) Fouchard, Gaillard, Goldman on International Commercial Arbitration. Kluwer Law International, pp. 393–394; Nigel Blackaby, Constantine Partasides, Alan Redfern and J Martin Hunter (2015) Redfern and Hunter on International Arbitration, 6th edn. Oxford University Press, pp. 313, 340.
98.
Ibid.
99.
Sornarajah, above Chap. 2, fn. 276, p. 207.
100.
Blackaby/Partasides/Redfern/Hunter, this chapter, fn. 97, pp. 325–326.
101.
The EU-Singapore IIPA does not have a similar provision on the binding effect of the respondent determination on the Tribunal. Yet, as discussed, this is not necessary as the binding effect derives from the arbitration agreement.
102.
See Article 3.10 EU-Singapore IIPA, Article 13 Section 3 Investment Chapter EU-Vietnam FTA, Article 10 Section 3 Investment Chapter TTIP.
103.
Roe/Happold, above Chap. 2, fn. 39, p. 185.
104.
See Article 42 ECT. An amendment, however, would require a ¾ majority amongst the treaty parties pursuant to Article 42(4) ECT.
105.
Keller/Schmitt in Krenzler/Herrmann/Niestedt this chapter, fn. 85, Article 1 Reg (EU) No 912/2014, para. 3.
106.
Ibid, para. 4.
107.
Cf. Schill, this chapter, fn. 24, p. 378.
108.
It follows from the law of international responsibility that only the internationally responsible party has the international obligation to rectify the international law breach, i.e. to pay compensation to the investor. It follows from the EU IIPA and the principle of res judicata that only the respondent—if found liable—is bound by arbitral awards and settlements. Thus, a third party not part of the proceedings and that did not act as respondent has no obligation to pay an award or settlement rendered against another party. See for details below Sect. 4.3.3.2.
109.
Dimopoulos, above Chap. 2, fn. 112, p. 1706.
110.
Case C-366/10 Air Transport Association of America v Secretary of State for Energy and Climate Change [2011] ECR I-1133, paras. 49–51; Case C-311/04 Algemene Scheeps Agentuur Dordrecht [2006] ECR I-609, para. 25.
111.
But see Dimopoulos, above Chap. 2, fn. 112, p. 1706.
112.
Explanatory Memorandum to the REG, p. 5.
113.
Keller/Schmitt in Krenzler/Herrmann/Niestedt this chapter, fn. 85, Article 4 Reg (EU) No 912/2014, para. 6; Tietje/Sipiorski/Töpfer, above Chap. 2, fn. 69, pp. 22–23; Kleinheisterkamp, above Chap. 3, fn. 111, p. 16; Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1220–1221; Bischoff, above Chap. 2, fn. 61, pp. 23–24.
114.
Kleinheisterkamp, above Chap. 3, fn. 111, p. 16.
115.
Bischoff, above Chap. 2, fn. 61, pp. 23–24; Freya Baetens (2013) Procedural Issues relating to Shared Responsibility in Arbitral Proceedings. 4(2) JIntlDS, pp. 329–330.
116.
See in general for the applicable law under IIPAs, Dolzer/Schreuer, above Chap. 2, fn. 280, pp. 288–293; Andrea K Björklund K (2014) Applicable Law in International Investment Disputes. In: Chiara Giorgetti (ed.) Litigating International Investment Disputes – A Practitioner’s Guide. Brill Nijhoff, pp. 261–286. For the applicable law regarding disputes under the Energy Charter Treaty, see Happ, above Chap. 2, fn. 261, p. 76; Tietje, above Chap. 2, fn. 30, pp. 5–7.
117.
In an investment treaty arbitration concerning contractual claims (possible under an umbrella clause elevating contract claims to treaty claims) national law may become a source of law. Article 42 ICSID, Article 35(1) UNCITRAL Arbitration Rules and Article 21(1) ICC Rules give the parties the option to choose national law as applicable law. However, this only addresses claims based on a contract and not based on the treaty (without recurring to the umbrella clause). On the difference between treaty claims and contractual claims under the umbrella clause of a treaty, see Dolzer/Schreuer, above Chap. 2, fn. 280, pp. 166–178.
118.
See in this respect Francisco J Pascual Vives (2014) Shaping the EU Investment Regime: Choice of Forum and Applicable Law in International Investment Agreements. 6(1) CDTransnatl, pp. 269–293.
119.
Happ/Bischoff, above Chap. 2, fn. 39, p. 159.
120.
Ibid.
121.
Cf. Articles 27, 46(1) VCLT and Article 3 ARS.
122.
Shaw, above Chap. 2, fn. 8, p. 100.
123.
Ibid, p. 102.
124.
Ibid.
125.
Ibid.
126.
Happ/Bischoff, above Chap. 2, fn. 39, p. 162.
127.
With respect to the ECT, see Tietje, above Chap. 2, fn. 30, pp. 6–7.
128.
Suggested by Baetens/Kreijen/Varga, above Chap. 2, fn. 73, p. 1221; Waibel, above Chap. 2, fn. 39, p. 19.
129.
Dimopoulos, above Chap. 2, fn. 112, pp. 1674, 1677, 1696 et seq.
130.
See Explanatory Memorandum to the REG, p. 7.
131.
Case C-433/03 Commission v Germany [2005] ECR I-7011, para. 64; Case C-246/07 Commission v Sweden [2010] ECR I-03317, para. 77; Case C-355/04 Segi [2007] ECR I-1662, para. 52.
See in general, Christophe Hillion (2010) Mixity and Coherence in EU External Relations: The Significance of the Duty of Cooperation. In: Christophe Hillion and Panos Koutrakos (eds.) Mixed Agreements Revisited – The EU and its Member States in the World. Hart, pp. 87–115.
132.
The Commission foreshadowed Opinion 2/13, in which the CJEU declared the co-respondent mechanism incompatible with the autonomy of EU law. The single-respondent model under post-Lisbon EU IIPAs excludes such a risk as the respondent determination has the substantive effect that the respondent automatically bears international responsibility for the treatment impugned by the investor. See below Sect. 4.3.
133.
Explanatory Memorandum to the REG, p. 5: ‘It is important to separate the issue of the conduct and management of an investor-to-State arbitration claim from the issue of the allocation of financial responsibility. This is necessary in order to ensure the fair allocation of costs, so that the EU budget – and consequently the budgets of Member States not concerned with the claim in question – are not burdened with costs relating to treatment afforded by one Member State’. See also Baetens/Kreijen/Varga, above Chap. 2, fn. 73, p. 1227.
134.
Explanatory Memorandum to the REG, p. 5; Recital 9 REG.
135.
See Explanatory Memorandum to the REG, p. 5: ‘it may be possible, as provided expressly in Article 2(1) TFEU, to empower a Member State to act as respondent in appropriate circumstances given the potential for significant demands (even temporary) on the Union budget and on Union resources were the Union to act as respondent in all cases’; see also Recital 9 REG.
136.
Explanatory Memorandum to the REG, p. 5; Recital 11 REG.
137.
Recital 8 REG makes clear: ‘The Union should always act as the respondent where a dispute exclusively concerns treatment afforded by the institutions, bodies, offices or agencies of the Union [emphasis added]’.
138.
Article 8(1)(b) Proposal REG provided that the EU shall act as respondent where ‘the Member State has not confirmed to the Commission in writing that it intends to act as respondent’.
139.
Explanatory Memorandum to the REG, pp. 6–7.
140.
Cf. Tietje/Sipiorski/Töpfer, above Chap. 2, fn. 69, p. 25.
141.
But see Dimopoulos, above Chap. 2, fn. 112, p. 1676, arguing that Articles 258 and 260 TFEU are unsuitable and insufficient for the EU to recover monies paid in the context of the arbitration from a Member State in case the Member State is unwilling to reimburse the EU.
142.
Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1227–1229.
143.
Recital 10 REG.
144.
See Dimopoulos, above Chap. 2, fn. 112, p. 1694.
145.
See Koen Lenaerts and José A Gutiérrez-Fons (2013) To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice. 2013/9 EUI Working Papers – Academy of European Law. http://cadmus.eui.eu/bitstream/handle/1814/28339/AEL_2013_09_DL.pdf?sequence=1&isAllowed=y. Accessed 26 August 2018.
146.
See Article 8.21(2) CETA.
147.
See explicitly Recital 11 REG: ‘In order to ensure that the interests of the Union can be appropriately safeguarded, it is essential that, in exceptional circumstances, the Union itself act as the respondent in disputes involving treatment afforded by a Member State. Those circumstances are limited to cases where the dispute also involves treatment afforded by the Union, where it appears that the treatment afforded by a Member State is required by Union law and where similar treatment is being challenged in a related claim against the Union in the World Trade Organisation (WTO), where a panel has been established and the claim concerns the same specific legal issue and where it is necessary to ensure a consistent argumentation in the WTO case [emphasis added]’.
148.
For details on the test under Article 3(1)(c) REG in conjunction with Article 2(l) REG, see below Sect. 5.2.2.2.
149.
Essentially, under Article 3(1)(a) and (b) REG financial responsibility is linked to the fact that a financial burden was ‘arising from treatment’. This link is not necessary for EU financial responsibility pursuant to Article 3(1)(c) REG. The EU act that ‘required’ the Member State to act under Article 3(1)(c) REG must not have been part of the dispute.
150.
See Recitals 7, 17 REG; Explanatory Memorandum to the REG, p. 5. However, after an award was rendered or a settlement agreed for purposes of the ex post facto allocation of financial responsibility, thus long after having assessed the question of respondent status, there are instances where the Commission and the CJEU must assess a given treatment for breaches of the EU IIPA. This can be the case, first, for determining whether a Member State treatment was partially required under Article 3(1)(c) REG. See for details below Sect. 5.2.2.2.6. And this can be the case, second, where an investor challenges both treatment for which eventually the EU is internally responsible (Article 3(1)(a) or (c) REG) and a Member State is responsible (Article 3(1)(b) REG), yet the award or settlement gives insufficient answer as to which treatment breached the EU IIPA. See below Sect. 6.3 for details. Again however, this question only comes up after an award or settlement was made, and thus way after the determination of the respondent has taken place.
151.
On the distinction drawn by the REG between internal financial responsibility under the REG and international responsibility under the EU IIPA, see Recital 3, Recital 5 REG and the Explanatory Memorandum to the REG, pp. 2, 5–6.
152.
See below Sect. 5.2.3.2 regarding all scenarios that create accountability gaps due to the fact that under the REG only the EU pursuant to Article 19 REG can recover from the Member States and not the other way round.
153.
See Explanatory Memorandum to the REG, p. 6: ‘The allocation of financial responsibility between the Union and a Member State may give rise to complex considerations’.
154.
Recital 20 REG; Explanatory Memorandum to the REG, pp. 11–12.
155.
Recital 10 reads: ‘Member States may, nevertheless, prefer that the Union act as the respondent in this type of dispute, for example for reasons of technical expertise. Member States should, therefore, have the possibility to decline to act as the respondent […]’.
156.
This test would have to be coupled with a mandatory application of Article 9(2) REG, which under the current version of the REG is only discretionary. If Article 9(2) REG remains to grant a discretionary leeway to the Commission, even a possibly-required test under Article 9(2)(a) REG could not avoid accountability gaps.
157.
See below Sect. 5.2.3.2.
158.
Baetens/Kreijen/Varga, above Chap. 2, fn. 73, p. 1226.
159.
Arguing the opposite, Baetens/Kreijen/Varga, above Chap. 2, fn. 73, p. 1226.
160.
Cf. Tietje/Sipiorski/Töpfer, above Chap. 2, fn. 69, p. 24.
161.
See above Sect. 4.2.1.3.1.
162.
See for example Articles 6–8 REG and Article 9(4)-(7) REG.
163.
Recital 10 Proposal REG: ‘Where a dispute concerns partially treatment afforded by the Union, or required by Union law, the Union should act as a respondent, unless the claims concerning such treatment are of minor importance , having regard to the potential financial responsibility involved and the legal issues raised, in relation to the claims concerning treatment afforded by the Member State [emphasis added]’.
164.
Explanatory Memorandum to the REG, p. 10: ‘The Commission may issue a decision that the Union shall act as respondent where [emphasis added]’.
165.
See also Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1226–1227.
166.
See Recital 11 REG; Explanatory Memorandum to the REG, p. 6: ‘The Union would act as respondent […] where the Commission decides that issues of Union law are involved such that the Union may be financially responsible [or] where the Commission takes the view that a Union position is required in order to ensure unity of external representation’; see also Recitals 10 and 11 Proposal REG.
167.
Under Article 9(3) REG there is no risk of accountability gaps since there is no direct or indirect EU involvement to trigger this provision. Put differently, the EU cannot face financial responsibility in cases of Article 9(3) REG.
168.
As regards Article 9(2)(a) REG, this would have to be coupled with the ‘possibly-required test’, as described above, to effectively avoid accountability gaps. Otherwise the risk of an incorrect application persists.
169.
Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers [2011] OJ L 55, p. 13.
170.
The same is true for Art. 13(1), 14(8) and 16(3) REG.
171.
The same is true for Art. 15(3) REG.
172.
In the same direction, Dimopoulos, above Chap. 2, fn. 112, pp. 1707–1710; Tietje/Sipiorski/Töpfer, above Chap. 2, fn. 69, pp. 24–25; Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1257–1258.
173.
It is further fathomable an annulment procedure pursuant to Article 263 TFEU in case the Commission infringes its obligation to pay due consideration to the financial interests of the Member States pursuant to Article 9(4) REG and in case the Member States disagrees with the EU’s defence strategy. See in this regard Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1257–1258.
174.
Dimopoulos, above Chap. 2, fn. 112, pp. 1707–1708.
175.
Simply, if the REG explicitly states in Recital 20 REG that an incorrect application of the provisions on internal allocation of financial responsibility by the Commission can constitute an annulment aground under Article 263 TFEU, then the same must apply to the incorrect application of the provisions on respondent status by the Commission.
176.
Dimopoulos, above Chap. 2, fn. 112, pp. 1707–1710.
177.
Case 123/77 UNICME [1978] ECR 845; Case C-486/01 Front National [2004] ECR I-6289; Case 11/82 Piraiki-Patraiki [1985] ECR 207.
178.
Case T-262/10 Microban [2011] ECR II-7697; Case 11/82 Piraiki-Patraiki [1985] ECR 207.
179.
The comitology procedures for Article 9(2) REG give the Commission the right to trump any disapproval from the Member States.
180.
Dimopoulos, above Chap. 2, fn. 112, pp. 1708–1709.
181.
Case 25/62 Plaumann [1963] ECR 95, requiring for the test of individual concern that an applicant (or group) is affected by a reason of certain attributes or circumstances, and that it is differentiated from all others and that it can be distinguished individually.
182.
Case T-221/10 Iberdrola [2012] ECR II-0000; Case 231/82 Spijker Kwasten BV [1983] ECR 259.
183.
See below Sect. 6.1.
184.
Baetens/Kreijen/Varga, above Chap. 2, fn. 73, p. 1234; Tietje/Sipiorski/Töpfer, above Chap. 2, fn. 69, p. 21; Dimopoulos, above Chap. 2, fn. 112, pp. 1682–1683.
185.
For example under Article 62 DARIO.
186.
With respect to the respondent determination under the ECT, Roe/Happold, above Chap. 2, fn. 39, pp. 174, 185.
187.
Roe/Happold, above Chap. 2, fn. 39, p. 185.
188.
Baetens/Kreijen/Varga, above Chap. 2, fn. 73, p. 1234; Tietje/Sipiorski/Töpfer, above Chap. 2, fn. 69, p. 21.
189.
Cf. above Sect. 3.2.1.2.
190.
Cf. Article 4 ARS and Article 6 ARIO.
191.
This can be the result of the respondent determination made by the Commission pursuant to Article 9(1)(b), (2) and (3) REG and rendered effective under EU IIPA (e.g. Article 8.21(3) CETA) or, where the Commission does not determine the respondent in due time, this can be the result of the respondent determination made by the investor (Article 8.21(4)(b)). It can also be the case that a Member State might defend EU treatment in case the EU does not exercise its discretion to seize respondent status for the EU pursuant to Article 9(2)(b) REG. Yet this scenario is unlikely as in all likelihood, where EU treatment is challenged, the Commission would exercise its discretion in such a case and confer respondent status onto the EU.
192.
It is not so much a problem for the investor since, as will be shown, the EU is internationally responsible for all conduct impugned, including the treatment afforded by the Member State. If the EU fails to provide information relevant for the dispute residing in the sphere of the Member State concerned, the Arbitral Tribunal can draw consequences that the absence of such information not adversely affects the claimant. For example, the Tribunal can draw adverse inferences from the fact that the EU is unable to provide relevant information and it can issue provisional measures against the EU to requiring it to provide relevant information and evidence.
193.
The EU bears financial responsibility pursuant to Article 3(1)(c) REG where the Member State treatment was required by EU law. This can form a basis for the Commission to seize respondent status pursuant to Article 9(2)(a) REG.
194.
Dimopoulos, above Chap. 2, fn. 112, p. 1680.
195.
See Hillion, this chapter, fn. 131.
196.
Dimopoulos, above Chap. 2, fn. 112, p. 1681.
197.
Ibid, p. 1682.
198.
Ibid, p. 1707.
199.
Cf. Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1228–1229; Tietje/Sipiorski/Töpfer, above Chap. 2, fn. 69, pp. 21–22.
200.
To clarify, this is not a problem of jurisdiction of the Tribunal for violating the fair trial rights of the Member State. As discussed above, where the respondent determination extends to the merits and answers international responsibility of the determined respondent for the challenged conduct, a violation of fair trial rights of the Member State is avoided since an Arbitral Tribunal only decides on the international responsibility of the EU (being the respondent) and a monetary award only has binding force upon the EU and not on the (absent) Member State. Only where the determination has no constitutive on the merits, the question arises whether granting the EU the right to be respondent in such cases violates the fair trial rights of the Member State concerned because it cannot defend its case. See below Sect. 4.3.3.1.2.3.
201.
Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1227–1229.
202.
As the Explanatory Memorandum to the REG makes clear in pp. 6–7: ‘It is evident for the Commission that, where the Union acts as respondent concerning treatment afforded by a Member State, it will be necessary to ensure a high degree of co-operation with the Member State concerned . This will involve close co-operation in the preparation of the defence, from the beginning to the end of the procedure . Thus, documents will need to be shared and representatives of the Member States should form part of the Union ’ s delegation . However, legislating for a specific role for such representatives in the hearings or permitting the filing of individual briefs, would introduce too rigid a system and might lead to difficulties in ensuring the unity of external representation of the Union. For that reason, while the Commission is keen to ensure close and effective co-operation, this Regulation should not contain details of such elements and should only specify the principle of close co-operation between the Union and Member States [emphasis added]’.
203.
Pursuant to Article 2(h) REG: ‘‘Settlement’ means any agreement between the Union or a Member State, or both, of the one part, and a claimant, of the other, whereby the claimant agrees not to pursue its claims in exchange for the payment of a sum of money or action other than the payment of money, including where the settlement is recorded in an award of an arbitration Tribunal’.
204.
See Article 13(3) Proposal REG.
205.
Explanatory Memorandum to the REG, p. 6.
206.
Which are pursuant to Article 15(1) REG: ‘(a) the Member State concerned accepts any potential financial responsibility arising from the settlement; (b) any settlement arrangement is enforceable only against the Member State concerned; and (c) the terms of the settlement are compatible with Union law’.
207.
Cf. Baetens/Kreijen/Varga, above Chap. 2, fn. 73, p. 1249.
208.
Explanatory Memorandum to the REG, p. 11.
209.
In this direction rather clearly with respect to future EU IIPAs, see Luca Pantaleo (2016) Respondent Status and Allocation of International Responsibility under EU Investment Agreements. 1(3) European Papers, p. 857; also in that direction, Kleinheisterkamp, above Chap. 3, fn. 111, p. 8; Dimopoulos, above Chap. 2, fn. 112, p. 1702; with respect to mixed IIPAs, see Eilmansberger, above Chap. 2, fn. 25, p. 396; in this direction with respect to the ECT, see Heliskoski, above Chap. 2, fn. 77, p. 173; Reinisch, above Chap. 2, fn. 45, p. 155; Hoffmeister, above Chap. 2, fn. 243, pp. 735–736; Burgstaller, above Chap. 2, fn. 137, pp. 128, 148; Roe/Happold, above Chap. 2, fn. 39, p. 174; Dimopoulos, above Chap. 2, fn. 39, pp. 251, 271. Claiming that the respondent determination under the ECT would determine the apportionment of obligations under it, Kuijper/Paasivirta, above Chap. 2, fn. 1, p. 186; Kuijper/Paasivirta, above Chap. 2, fn. 76, p. 121; Arguing that the respondent determination under CETA does not have a constitutive effect on the international responsibility of the determined respondent, Hannes Lenk (2016) Issues of Attribution: Responsibility of the EU in Investment Disputes under CETA. 13(1) TDM, p. 21.
210.
Explanatory Memorandum to the REG, pp. 4–5.
211.
Though the Commission does not differentiate between mixed and EU-only IIPAs, the respondent determination under a EU IIPA in and of itself can only have a constitutive effect under mixed IIPAs. Under EU-only IIPAs, at least the international responsibility of a Member State requires more than the EU’s determination of a Member State as the respondent. For details, see below Sect. 4.4.
212.
Explanatory Memorandum to the REG, p. 3.
213.
Ibid, p. 5.
214.
See Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1231–1232.
215.
Ibid.
216.
See Articles 8.1, 8.21, 8.22 and 8.25 CETA.
217.
Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, 1988 ICJ Reports 63.
218.
Bryan A Garner (ed.) (2014) Black’s Law Dictionary, 10th edn. West, p. 1505.
219.
Ibid, p. 508.
220.
Ibid, p. 1494.
221.
See Articles 8.39 and 8.41(1) CETA.
222.
Cf. Cannizzaro, above Chap. 3, fn. 102, pp. 308–312.
223.
See Pantaleo, this chapter, fn. 209, p. 857.
224.
Cf. below Sect. 4.4.
225.
See Baetens, this chapter, fn. 115, pp. 327–328.
226.
Heliskoski, above Chap. 2, fn. 77, p. 197.
227.
Ibid.
228.
See Pavel Stûrma (2013) The responsibility of international organizations and their member states. In: Maurizio Ragazzi M (ed.) Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie. Martinus Nijhoff Publishers, p. 323; Schill, this chapter, fn. 24, pp. 378, 383; Heliskoski, above Chap. 2, fn. 77, p. 194.
229.
Schill, this chapter, fn. 24, pp. 378, 383.
230.
Heliskoski, above Chap. 2, fn. 77, p. 196.
231.
Cf. Dimopoulos, above Chap. 2, fn. 112, p. 1691.
232.
For the text of the agreement, see this chapter, fn. 9.
233.
Kuijper, above Chap. 3, fn. 78, p. 75.
234.
See again above Chap. 1, fn. 16.
235.
J Romesh Weeramantry (2012) Treaty Interpretation in Investment Arbitration. Oxford University Press, para. 3.32.
236.
Ibid, para. 3.70.
237.
Article 3.5(4) EU-Singapore IIPA has a similar wording: ‘Where either the Union or a Member State acts as respondent, neither the Union nor the Member State concerned shall assert the inadmissibility of a claim, or otherwise assert that a claim or award is unfounded or invalid, on the ground that the proper respondent should be or should have been the Union rather than the Member State or vice versa’. Article 5(5) Section 3 Investment Chapter TTIP and Article 6(4) Section 3 Investment Chapter EU-Vietnam FTA equally read: ‘Where either the European Union or the Member State is respondent following a determination made pursuant to paragraph […], neither the European Union, nor the Member State concerned may assert the inadmissibility of the claim, lack of jurisdiction of the Tribunal or otherwise assert that the claim or award is unfounded or invalid on the ground that the proper respondent should be the European Union rather than the Member State or vice versa’.
238.
Article 5(6) Section 3 Investment Chapter TTIP and Article 6(5) Section 3 Investment Chapter EU-Vietnam FTA equally read: ‘The Tribunal and the Appeal Tribunal shall be bound by the determination’.
239.
See again above Sect. 4.2.1.3.
240.
In case the investor misapplies the criteria in Article 8.21(4) CETA and sues the incorrect respondent, there would be no consent to arbitration by the respondent, which consents only under the condition that the respondent determination mechanism is correctly applied pursuant to Articles 8.21(1), 8.22(1)(c), 8.23, 8.25 CETA.
241.
Schill, this chapter, fn. 24, p. 378: ‘[International responsibility] goes to the question of which public entity is the right party in an investor-state arbitration, the Union or its Member States. Procedural Status, by contrast, concerns issues of jurisdiction, admissibility, and procedure, and goes to the question of which public entity is a potential party to an investor-state arbitration [emphasis added]’.
242.
Weeramantry, this chapter, fn. 235, para. 3.24.
243.
Dimopoulos, above Chap. 2, fn. 112, p. 1709.
244.
This would already flow from the arbitration clause.
245.
This would equally already flow from the arbitration clause.
246.
See above Sect. 4.2.1.1.1.
247.
See above Sect. 4.2.2.2.3.
248.
Case C-366/10 Air Transport Association of America [2011] ECR I-1133, paras. 49–51; Case C-311/04 Algemene Scheeps Agentuur Dordrecht [2006] ECR I-609, para. 25; see Martines, above Chap. 2, fn. 325, pp. 132–133; Dimopoulos, above Chap. 2, fn. 112, pp. 1709–1710.
249.
Dimopoulos, above Chap. 2, fn. 112, pp. 1709–1710.
250.
Ibid, p. 1702; cf. Schill, this chapter, fn. 24, p. 378.
251.
Article 3.5(4) EU-Singapore IIPA does not even refer to the jurisdiction of a Tribunal and, similarly, reads: ‘otherwise assert that a claim or award is unfounded or invalid’.
252.
Instead of many, Schill, this chapter, fn. 24, p. 378.
253.
Attribution may undoubtedly determine a respondent’s international responsibility for a certain conduct under a EU IIPA. As the ILC Articles witness, a respondent can also be internationally responsible for a certain conduct without the challenged conduct attributable to it and even without being bound by the international obligation that is allegedly breached. Thus, not only attribution, but also international responsibility in general for a certain conduct (possible without attribution) may have a bearing on jurisdiction. For present purposes however, the focus is put on attribution of conduct.
254.
Hoffmeister, above Chap. 2, fn. 243, pp. 735–736, 738, 747; Heliskoski, above Chap. 2, fn. 77, p. 173; El Hayek/Gilles, above Chap. 3, fn. 233, pp. 585, 588; Happ, above Chap. 2, fn. 261, p. 77, at fn. 34; Reinisch, above Chap. 2, fn. 45, p. 155; Stûrma, this chapter, fn. 228, pp. 323–324.
255.
In international law, the difference between jurisdiction and admissibility is blurred; in any case, the international court would decline its jurisdiction. See El Hayek/Gilles, above Chap. 3, fn. 233, p. 585; see also Crawford, above Chap. 3, fn. 92, p. 475: ‘Objections to jurisdiction, if successful, stop all proceedings in the case since they strike at the competence of the Tribunal to give rulings as to the merits or admissibility of the claim. An objection to the substantive admissibility of a claim invites the Tribunal to reject the claim on a ground distinct from the merits […]’; Hochtief Aktiengesellschaft v The Argentine Republic, ICSID Case No ARB/07/31, Decision on Jurisdiction, 24 October 2011, para. 90: ‘Jurisdiction is an attribute of a Tribunal and not of a claim, whereas as admissibility is an attribute of a claim but not of a Tribunal’.
256.
See e.g. Emilio Agustin Maffezini v The Kingdom of Spain, ICSID Case No ARB/97/7, Decision on Objections to Jurisdiction, 25 January 2000, paras. 51 et seq; Salini Costruttori SpA and Italstrade SpA v Kingdom of Morocco, ICSID Case No ARB/00/4, Decision on Jurisdiction, 31 July 2001, paras. 28–31; Salini Costruttori SpA. and Italstrade SpA v The Hashemite Kingdom of Jordan, ICSID Case No ARB/02/13, Decision on Jurisdiction, 9 November 2004, paras. 31, 157; Nykomb Synergetics Technology Holding AB v The Republic of Latvia, SCC, Arbitral Award, 16 December 2003, para. 4.2; Generation Ukraine Inc v Ukraine, ICSID Case No ARB/00/9, Award, 16 September 2003, paras. 10.1 et seq; Compañía de Aguas del Aconquija SA and Vivendi Universal SA v Argentine Republic, ICSID Case No ARB/97/3, Award, 21 November 2000, para. 49; Niko Resources Ltd. v People’s Republic of Bangladesh, Bangladesh Petroleum Exploration & Production Company Limited and Bagladesh Oil and Mineral Corporation, ICSID Case No ARB/10/11 and ARB/10/18, Decision on Jurisdiction, 19 August 2013, paras. 242–247; Tokios Tokelés v Ukraine, ICSID Case No ARB/02/18, Decision on Jurisdiction, 29 April 2004, para. 102; CMS Gas Transmission Company v Argentina, ICSID Case No ARB/01/8, Decision of the Tribunal on Objections on Jurisdiction, 17 July 2003, para. 108; Toto Costruzioni Generali SpA v Republic of Lebanon, ICSID Case No ARB/07/12, Decision on Jurisdiction, 11 September 2009, paras. 43 et seq.
257.
See e.g. Behrami v France; Saramati v France, Germany and Norway [GC] Application No 71412/01 and 78166/01, 2 May 2007, at paras. 29–33; Blagojevic and Galic v The Netherlands, Application 22617/07, 9 June 2009; Bosphorus Hava Yollari Turizm v Ireland [GC] Application No 45036/98, 30 June 2005, ECHR Reports 2005-VI, para. 137: ‘In such circumstances the applicant company, as the addressee of the impugned act fell within the ‘jurisdiction’ of the Irish State, with the consequence that its complaint about that act is compatible ratione loci, personae and materiae with the provisions of the Convention’.
Pursuant to the ECHR guide, attribution of conduct, or imputability, how it is called in the guide, is even classified as a criterion of admissibility, or jurisdiction ratione personae. See ECHR, Practical Guide on Admissibility Criteria, 2011, www.refworld.org/docid/4f16c1482.html. Accessed 26 August 2018, pp. 34–38 with many examples.
258.
El Hayek/Gilles, above Chap. 3, fn. 233, pp. 584–585.
259.
See Christian Tomuschat (2013) The European Court of Human Rights and the UN. In: Andreas Føllesdal, Birgit Peters and Geir Ulfstein (eds.) Constituting Europe: The European Court of Human Rights in a National, European and Global Context. Cambridge University Press, p. 351, saying in fn. 59 it is erroneous to contend ‘that attribution is exclusively a concept of international responsibility’.
260.
Shaw, above Chap. 2, fn. 8, p. 595; Petrochilos (2010) Attribution. In: Katia Yannaca-Small (ed.) Arbitration under International Investment Agreements – A guide to the key issues. Oxford University Press, p. 287; ARS Commentary, Article 2, para. 12.
261.
Cf. ARS Commentary, Article 2, para. 12; Crawford, above Chap. 2, fn. 81, p. 113; Messineo, above Chap. 3, fn. 11, p. 65; Amerasinghe, above Chap. 3, fn. 257, p. 226: ‘Attribution is the result of an intellectual operation necessary to bridge the gap between an individual or a group of individuals and the State […]’; Electrabel SA v The Republic of Hungary, ICSID Case No ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012, para. 7.61; Gustav F W Hamester GmbH & Co KG v Republic of Ghana, ICSID Case No ARB/07/24, Award, 18 June 2010, para. 143.
262.
El Hayek/Gilles, above Chap. 3, fn. 233, p. 585.
263.
Rutsel Silvestre Jacinto Martha (2013) Attribution of conduct after the Advisory Opinion on the Global Mechanism. In: Maurizio Ragazzi (ed.) Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie. Martinus Nijhoff Publishers, p. 275: ‘For jurisdictional purposes, attribution is only concerned with establishing whether an act of the responding party is involved’; Amerasinghe, above Chap. 3, fn. 257, p. 2: ‘The attribution or imputation to the respondent State of acts or omissions by persons or organs, constituting the violation of international obligations which may be regarded as part of the primary rules, relate also in a sense to objective or passive capacity or the capacity to be sued or be at the receiving end of the exercise of diplomatic protection’, p. 226: ‘The element of attribution may be said to relate to the ‘objective’ capacity of the respondent State to be cited as respondent in the case’.
264.
Martha, this chapter, fn. 263, p. 275.
265.
El Hayek/Gilles, above Chap. 3, fn. 233, p. 585.
266.
Cf. Amerasinghe, above Chap. 3, fn. 257, p. 227; see in this respect in more detail, Jaemin Lee (2015) State Responsibility and Government-Affiliated Entities in International Economic Law: The Danger of Blurring the Chinese Wall between ‘State Organ’ and ‘Non-State Organ’ as Designed in the ILC Draft Articles. 49(1) JWIT, pp. 117–151.
267.
Cf. Claudia Annacker (2011) Protection and Admission of Sovereign Investment under Investment Treaties. 10(3) CJIntlL, pp. 556–557.
268.
Article 23(2) ECT reads: ‘The dispute settlement provisions in Parts II, IV and V of this Treaty may be invoked in respect of measures affecting the observance of the Treaty by a Contracting Party which have been taken by regional or local governments or authorities within the Area of the Contracting Party’.
269.
See Wouters/Wälde, above Chap. 3, fn. 252, pp. 161, 182–184, 186; Roe/Happold, above Chap. 2, fn. 39, p. 166.
270.
Jan de Nul NV and Dredging International NV v Arab Republic of Egypt, ICSID Case No ARB/04/13, Decision on Jurisdiction, 16 June 2006, paras. 83–89; Saipem SpA v The People’s Republic of Bangladesh, ICSID Case No ARB/05/07, Award, 30 June 2009, paras. 144 et seq; Gustav F W Hamester GmbH & Co KG v Republic of Ghana, ICSID Case No ARB/07/24, Award, 18 June 2010, para. 145; Electrabel SA v The Republic of Hungary, ICSID Case No ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012, para. 5.35; United Parcel Service of America Inc v Government of Canada, UNCITRAL, Decision on Jurisdiction, 22 November 2002, paras. 33–37; Siemens AG v The Argentine Republic, ICSID Case No ARB/02/8, Decision on Jurisdiction, 3 August 2004, para. 180; Bayindir Insaat Turizm Ticaret Ve Sanayi AS v Islamic Republic of Pakistan, ICSID Case No ARB/03/29, Decision on Jurisdiction, 14 November 2005, paras. 185–200; El Paso Energy International Company v The Argentine Republic, ICSID Case No ARB/03/15, Decision on Jurisdiction, 27 April 2006, paras. 40–45; Telenor Mobile Communications AS v The Republic of Hungary, ICSID Case No ARB/04/15, Award, 13 September 2006, paras. 34, 53, 68, 80; Helnan International Hotels A/S v Arab Republic of Egypt, ICSID Case No ARB/05/19, Decision of the Tribunal on the Objections to Jurisdiction, 17 October 2006, paras. 82–95; Salini Costruttori SpA and Italstrade SpA v The Hashemite Kingdom of Jordan, ICSID Case No ARB/02/13, Decision on Jurisdiction, 9 November 2004, paras. 31, 151. In general on the prima facie test of attribution at the jurisdictional stage, see Audley Sheppard (2008) The Jurisdictional Threshold of a Prima-Facie Case. In: Peter Muchlinski, Federico Ortino and Christoph H Schreuer (eds.) Oxford Handbook of International Investment Law. Oxford University Press, pp. 932–961; Jan Ole Voss (2010) The Impact of Investment Treaties on Contracts between Host States and Foreign Investor. Martinus Nijhoff Publishers, p. 152; Annacker, this chapter, fn. 267, pp. 557–558.
271.
Electrabel SA v The Republic of Hungary, ICSID Case No ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012, para. 7.61; Gustav F W Hamester GmbH & Co KG v Republic of Ghana, ICSID Case No ARB/07/24, Award, 18 June 2010, para. 143.
272.
Cf. Amerasinghe, above Chap. 3, fn. 257, pp. 226–228; Martins Paparinskis (2013) Investment Treaty Arbitration and the (New) Law of State Responsibility. 24(2) EJIntlL, pp. 627–628; Martha, this chapter, fn. 263, p. 275: ‘Attribution does not imply any characterization of the act attributed, and must be distinguished from the subsequent operation, which consists of ascertaining whether the act is wrongful’.
273.
Cf. Paparinskis, this chapter, fn. 272, p. 628.
274.
See Clifford Larsen (2004) ICSID Jurisdiction: The Relationship of Contracting States to Sub-State Entities. In: Stefan Michael Kröll and Norbert Horn (eds.) Arbitrating Foreign Investment Disputes: Procedural and Substantive Legal Aspects. Kluwer Law International, p. 357; Srilal M Perera (2005) State Responsibility: Ascertaining the Liability of States in Foreign Investment Disputes. 6(4) JWIT, p. 509; Dolzer/Schreuer, above Chap. 2, fn. 280, p. 249; Zachary Douglas (2009) The International Law of Investment Claims. Cambridge University Press, p. 154; Annacker, this chapter, fn. 267, pp. 556–557. To clarify, attribution of conduct for purposes of jurisdiction ratione personae is required where the international responsibility of the host state for treaty breaches is invoked. Conversely, an Investment Treaty Tribunal does not have jurisdiction ratione personae over the host state where the claimant invokes the breach of a contractual obligation (which cannot be elevated to a treaty obligation under an umbrella clause of the treaty) engaged into by the investor and a state enterprise with separate legal standing. For this enquiry, one does not have to indulge into the operation of attribution of conduct, but one has to determine the source of the obligation. See in this respect Andrew Newcombe and Lluís Paradell (2009) Law and Practice of Investment Treaties: Standards of Treatment. Kluwer Law International, p. 465; in general on the distinction between treaty claims and contractual claims, see Sasson, above Chap. 3, fn. 252, pp. 151–172.
275.
Cf. Baetens, this chapter, fn. 115, pp. 336–340; Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1230–1231.
276.
Monetary Gold Removed from Rome in 1943 (Italy v France, UK and US), 1954 ICJ Reports 19.
277.
The ICJ established the Monetary Gold principle in relation to States. However, in absence of a lex specialis there is no reason why an Arbitral Tribunal would not consider it as lex generalis. See Baetens, this chapter, fn. 115, pp. 336–340; André Nollkaemper (2013) Procedural Aspects of Shared Responsibility in International Adjudication: Introduction. 4(2) JIntlDS, pp. 289–290; see also Chevron Corporation and Texaco Petroleum Corporation v The Republic of Ecuador, UNCITRAL, PCA Case No 2009-23, Third Interim Award on Jurisdiction and Admissibility, 27 February 2012, paras. 4.59–4.71; Larsen v Hawaiian Kingdom, Permanent Court of Arbitration, Award, ICGJ 378 (PCA 2001), 5 February 2001, para. 11.17.
278.
Crawford, above Chap. 2, fn. 81, p. 657.
279.
Provoked by case law of the ICJ that hovered between broad and narrow understandings, its interpretations and legal ramifications are controversial. For a distinct discussion of the ICJ case law on the Monetary Gold principle, see Martins Paparinskis (2013) Procedural Aspects of Shared Responsibility in the International Court of Justice. 4(2) JIntlDS, pp. 295–318; Alexander Orakhelashvili (2011) The Competence of the International Court of Justice and the Doctrine of the Indispensable Party: from Monetary Gold to East Timor and Beyond. 2(2) JIntlDS, pp. 373–392.
280.
Cf. Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1230–1231.
281.
Crawford, above Chap. 2, fn. 81, p. 657.
282.
Monetary Gold Removed from Rome in 1943 (Italy v France, UK and US), 1954 ICJ Reports 19, at p. 32; Certain Phosphate Lands in Nauru (Nauru v Australia), 1992 ICJ Reports 240, at p. 261, para. 54; East Timor (Portugal v Australia), 1995 ICJ Reports 90, at p. 105.
283.
Monetary Gold Removed from Rome in 1943 (Italy v France, UK and US), 1954 ICJ Reports 19, at p. 33.
284.
Monetary Gold Removed from Rome in 1943 (Italy v France, UK and US), 1954 ICJ Reports 19, at p. 32; Certain Phosphate Lands in Nauru (Nauru v Australia), 1992 ICJ Reports 240, at p. 261, para. 54; East Timor (Portugal v Australia), 1995 ICJ Reports 90, at p. 105.
285.
Certain Phosphate Lands in Nauru (Nauru v Australia), 1992 ICJ Reports 240, at p. 296 (Separate Opinion of Judge Shahabuddeen); Frontier Dispute (Burkina Faso v Mali), 1986 ICJ Reports 554, at p. 579; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), Preliminary Objections, 1998 ICJ Reports 275, at pp. 311–312; Armed Activities (Democratic Republic of Congo v Uganda), 2005 ICJ Reports 168, at pp. 237–238.
286.
Cf. Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1230–1231.
287.
See above Sect. 4.2.1.1.2 and above Sect. 4.2.2.2.6.
288.
Shabtai Rosenne (2006) The Law and Practice of the International Court, 1920–2005, 4th edn. Martinus Nijhoff Publishers, p. 539.
289.
But see Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1230–1231.
290.
Crawford, above Chap. 2, fn. 81, p. 657.
291.
Ibid, p. 669.
292.
Rosenne, this chapter, fn. 288, pp. 546–547.
293.
Crawford, above Chap. 2, fn. 81, p. 661.
294.
Cf. Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1230–1231; Chevron Corporation and Texaco Petroleum Corporation v The Republic of Ecuador, UNCITRAL, PCA Case No 2009-23, Third Interim Award on Jurisdiction and Admissibility, 27 February 2012, para. 4.60.
295.
Cf. Crawford, above Chap. 2, fn. 81, pp. 664–665.
296.
Rosenne, this chapter, fn. 288, pp. 1585–1598, 1605.
297.
Cf. Crawford, above Chap. 2, fn. 81, pp. 664–665. But see Orakhelashvili, this chapter, fn. 279, pp. 390–391.
298.
Cf. Crawford, above Chap. 2, fn. 81, p. 665.
299.
See above Sects. 4.2.2.2.6 and 4.3.4.1.
300.
See above Sects. 4.2.1.1.2 and 4.3.4.1.
301.
See above Sect. 3.2.1.2.
302.
Baetens/Kreijen/Varga, above Chap. 2, fn. 73, p. 1232.
303.
Article 53(1) ICSID reads: ‘The Award shall be binding on the parties […]’.
304.
See e.g. Articles 34(6) or 28(6) ICC Rules of Arbitration; Articles 32 or 34(2) UNCITRAL Arbitration Rules; Article 40 SCC Rules.
305.
Similarly, see Article 3.22 EU-Singapore IIPA; Articles 27, 29 Section 3 Investment Chapter EU-Vietnam FTA and Articles 28, 30 Section 3 Investment Chapter TTIP.
306.
See Christoph H Schreuer, Loretta Malintoppi, August Reinisch and Anthony Sinclair (2009) The ICSID Convention: A Commentary, 2nd edn. Cambridge University Press, Art. 53 ICSID, paras. 10, 14; Crawford, above Chap. 3, fn. 92, pp. 59–61.
307.
Also referred to as the ‘triple-identity test’. See Pedro J Martinez-Fraga and Harout Jack Samra (2012) The Role of Precedent in Defining Res Judicata in Investor–State Arbitration. 32(3) NwJIntlLB, p. 421.
308.
Stavros Brekoulakis (2005) The Effect of an Arbitral Award and Third Parties in International Arbitration: Res Judicata Revisited. 16(1) ARIA, pp. 185–188.
309.
Ibid.
310.
Chorzow Factory (Jurisdiction), PCIJ Series A No 9, p. 21.
311.
ARS Commentary, Article 31, para. 4: ‘The general obligation of reparation is formulated in article 31 as the immediate corollary of a State’s responsibility, ie as an obligation of the responsible State resulting from the breach’.
312.
Cf. Explanatory Memorandum to the REG, p. 5: ‘[…] rather than set up the mechanisms in a manner reflecting a strict application of the rules on competence, it is more appropriate to put forward pragmatic solutions which ensure legal certainty for the investor […]’.
313.
Explanatory Report to the ECHR Accession Agreement, para. 39.
314.
Dimopoulos, above Chap. 2, fn. 112, pp. 1700–1702; Schill, above Chap. 3, fn. 244, p. 384: ‘Any dispute settlement mechanism under an EU IIPA would need to make sure that the decision-making body does not, directly or indirectly, review the distribution of competences between the EU and Member States, for example by making determinations as to the proper respondent or the distribution of responsibility’.
315.
Since the EU-Singapore IIPA and TTIP have a similar if not identical wording, the same is true with respect to the respondent determination in disputes under these EU IIPAs.
316.
With respect to mixed EU IIPAs in general, Dimopoulos, above Chap. 2, fn. 112, p. 1692; with respect to the ECT, see Roe/Happold, above Chap. 2, fn. 39, p. 174; Happ/Bischoff, above Chap. 2, fn. 39, p. 172.
317.
See ARS Commentary, Art. 11, para. 6; ARIO Commentary, Article 9, paras. 1–2.
318.
See ARS Commentary, Art. 11, paras. 1, 8–9; ARIO Commentary, Article 9, paras. 1–2.
319.
Messineo, above Chap. 3, fn. 11, p. 66.
320.
Ibid.
321.
Considering the respondent determination mechanism under the ECT as a lex specialis rule of international responsibility: Cortés Martín, above, Chap. 3, fn. 26, pp. 197–198; Denza, above Chap. 2, fn. 55, p. 242; Heliskoski, above Chap. 2, fn. 77, pp. 172–173.
322.
ARS Commentary, Art. 55, para. 4; ARIO Commentary, Art. 64, para. 7.
323.
See for the text of the provision above Chap. 3, fn. 39 and accompanying text.
324.
See above Sect. 4.2.1.1.2.
325.
See fn. 151 and accompanying text.
326.
Kuijper, above Chap. 3, fn. 78, pp. 16–17, 19; Den Heijer/Nollkaemper, above Chap. 3, fn. 103, pp. 5–7; Cannizzaro, above Chap. 3, fn. 102, pp. 308–312.
327.
James Crawford (2010) Investment Arbitration and the ILC Articles on State Responsibility. 25(1) ICSIDRev, p. 131. See also United Parcel Service of America Inc. v Canada, Award on the Merits (NAFTA Chapter 11 Arbitration, June 11, 2007), paras. 59–63.
328.
See above Sect. 2.2.2.2.
329.
Cf. Article 6 Section 3 Investment Chapter EU-Vietnam FTA and Article 9.15 of the former EU-Singapore FTA in its May 2015 version.
330.
See Article 1(1) REG: ‘[…] this Regulation applies to investor-to-state dispute settlement conducted pursuant to an agreement to which the Union is party , or the Union and its Member States are parties, and initiated by a claimant of a third country [emphasis added]’.
331.
Questioning the effectiveness under international law of a respondent determination mechanism enshrined in EU-only IIPAs providing for Member State respondent status and, thus, the possibility of a proceduralisation under EU-only IIPAs, Dimopoulos, above Chap. 2, fn. 112, p. 1683; Kleinheisterkamp, above Chap. 3, fn. 111, p. 7; Burgstaller, above Chap. 2, fn. 137, p. 152; Bischoff, above Chap. 2, fn. 61, pp. 18, 22–23.
332.
Under mixed IIPAs this poses no problem as both the EU and the Member States consent to arbitration upon conclusion of the mixed IIPA, and as both can be held internationally responsible under them for they both assume international obligations under them.
333.
Lock, above Chap. 2, fn. 195, p. 101: ‘[…] if a member state brought a case against another member state before an international court based on a pure Union agreement, that international court would not have jurisdiction ratione personae’; Dimopoulos, above Chap. 2, fn. 112, pp. 1684–1687; in general, see Shaw, above Chap. 2, fn. 8, p. 798; Eric de Brabandere (2014) Investment Treaty Arbitration as Public International Law – Procedural Aspects and Implications. Cambridge University Press, p. 23.
334.
Dimopoulos, above Chap. 2, fn. 112, pp. 1684–1687.
335.
See above Sect. 4.3.3.2.
336.
Schill, this chapter, fn. 24, p. 378.
337.
Christopher Dugan, Don Wallace, Noah Rubins and Borzu Sabahi (2011) Investor-State Arbitration. Oxford University Press, pp. 219–246; Andrea Marco Steingruber (2012) Consent in International Arbitration. Oxford University Press, paras. 5.20 et seq; Dimopoulos, above Chap. 2, fn. 112, pp. 1683, 1686; Dolzer/Schreuer, above Chap. 2, fn. 280, p. 254; UNCTAD (2003) Course on Dispute Settlement International Centre for Settlement of Investment Disputes, (2.3. Consent to Arbitration), United Nations, New York and Geneva, Doc UNCTAD/EDM/Misc.232/Add.2. http://unctad.org/en/docs/edmmisc232add2_en.pdf. Accessed 26 August 2018, pp. 6–9.
338.
Dugan/Wallace/Rubins/Sabahi, this chapter, fn. 337, pp. 220, 242–246; Dolzer/Schreuer, above Chap. 2, fn. 280, p. 254. But see Steingruber, this chapter, fn. 337, paras. 5.45–5.48.
339.
Schreuer/Malintoppi/Reinisch/Sinclair, this chapter, fn. 306, Article 25 ICSID, paras. 620–624; Steingruber, this chapter, fn. 337, para. 5.60. See on the differences between the conception of the doctrine of severability in international commercial arbitration and investment treaty arbitration, Voss, this chapter, fn. 270, pp. 73–81.
340.
Dimopoulos, above Chap. 2, fn. 112, p. 1686.
341.
Proelss in Dörr/Schmalenbach, above Chap. 2, fn. 81, Article 34 VCLT, para. 4.
342.
Dimopoulos, above Chap. 2, fn. 112, p. 1686.
343.
See above Sect. 2.3.2.2.
344.
Explanatory Memorandum to the REG, p. 5.
345.
For details, see above Sect. 2.3.2.
346.
Schmalenbach in Dörr/Schmalenbach, above Chap. 2, fn. 81, Article 26 VCLT, para. 55.
347.
Proelss in Dörr/Schmalenbach, above Chap. 2, fn. 81, Article 35 VCLT, para. 11.
348.
Villiger, above Chap. 2, fn. 118, Article 35 VCLT, para. 4.
349.
Fitzmaurice, above Chap. 2, fn. 308, p. 56; see also Article 37(1) VCLT: ‘When an obligation has arisen for a third State in conformity with article 35, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third State, unless it is established that they had otherwise agreed [emphasis added]’.
350.
Article 28 VCLT: ‘Unless a different intention appears from the treaty or is otherwise established , its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party [emphasis added]’.
351.
Villiger, above Chap. 2, fn. 118, Article 35 VCLT, para. 4; Proelss in Dörr/Schmalenbach, above Chap. 2, fn. 81, Article 35 VCLT, para. 15.
352.
ARS Commentary, Article 18 ARS, para. 1; ARIO Commentary, Article 16 ARIO, paras. 2–3; ARIO Commentary, Article 60, paras. 1–2.
353.
Cf. D’Aspremont, above Chap. 3, fn. 127, p. 98, arguing—even before the adoption of Article 62 ARIO—that it is undisputed that a Member State can expressly or impliedly accept international responsibility for an act that can formally be attributed to an international organisation, with the consequence that ‘this state is to be considered internationally responsible’.
354.
Article 62 ARIO speaks of an international wrongful act of the international organisation, and not of an international wrongful act of the Member State. An international wrongful act of the international organisation requires pursuant to Article 4(b) ARIO a breach of an international obligation of the international organisation, and not the Member States. See also Commentary to ARIO, Article 62, paras. 6–7.
355.
The provision reads: ‘Accession to the Convention and the protocols thereto shall impose on the European Union obligations with regard only to acts, measures or omissions of its institutions, bodies, offices or agencies, or of persons acting on their behalf. Nothing in the Convention or the protocols thereto shall require the European Union to perform an act or adopt a measure for which it has no competence under European Union law’.
356.
See Explanatory Report to the ECHR Accession Agreement, para. 22.
357.
See for the text of the provision above Chap. 3, fn. 39 and accompanying text.
358.
The provision reads: ‘If the violation in respect of which a High Contracting Party is a co-respondent to the proceedings is established, the respondent and the co-respondent shall be jointly responsible for that violation, unless the Court, on the basis of the reasons given by the respondent and the co- respondent, and having sought the views of the applicant, decides that only one of them be held responsible’.
359.
Kuijper, above Chap. 3, fn. 78, pp. 17, 19; Den Heijer/Nollkaemper, above Chap. 3, fn. 103, pp. 5–6.
360.
ARIO Commentary, Article 62, para. 6.
361.
ARIO Commentary, Article 62, para. 7.
362.
Möldner, above Chap. 2, fn. 1, pp. 321–322.
363.
ARIO Commentary, Article 62, para. 10.
364.
Dimopoulos, above Chap. 2, fn. 112, pp. 1686–1687.
365.
Cf. Dimopoulos, above Chap. 2, fn. 39, p. 252.

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Stegmann, P.T. (2019). The Proceduralisation and Internalisation of International Responsibility Under Post-Lisbon Mixed IIPAs. In: Responsibility of the EU and the Member States under EU International Investment Protection Agreements. European Yearbook of International Economic Law(), vol 6. Springer, Cham. https://doi.org/10.1007/978-3-030-04366-7_4

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