CYIL 2015

POSTǧLISBON EXERCISE OF EU COMPETENCE IN THE FIELD OF FOREIGN INVESTMENT… the EU and its Member States on the sharing of responsibility” (understood broadly) that falls under and defies the latter’s exclusive jurisdiction, then the question arises whether this means a mandatory pre-arbitration referral of the “right respondent question” to the CJEU in each and every arbitration, especially if the new trade/ investment instruments are concluded as mixed. While such an interpretation seems too far-stretched as it would mean more generally that the CJEU would have to be consulted in any international proceedings involving the Member States and the Union (contrary to the existing practice under the above referred international agreements), further course of action will be possibly informed by the future CJEU’s opinion that the Commission is expected to request concerning the EUSFTA. Conclusion This article looks into the post-Lisbon exercise by the Union of its foreign investment-related competence by turning first to “EU-domestic” developments before addressing its extra-EU facet. While the Extra-EU BITs Regulation seems to have worked smoothly so far, and its implementation does not seem hampered by the ongoing discussion concerning the scope of the Union’s new competence, further challenges may lurk ahead especially when the respective empowered extra EU BITs have to be terminated in order to be replaced by agreements negotiated by the Union. Also, the extra-EU BITs have revived interest in the somewhat rebellious “bipolar” Art. 351 TFEU that continues to be a relevant normative element for the Member States’ extra-EU BITs and the further application thereof. Fon its part, the Financial Responsibility Regulation still awaits a first opportunity to be tested, and such an opportunity may come in connection with a claim launched under the ECT. Beyond this context, however, it will not be activated until a first of the negotiated or currently negotiated instruments enters into force and until a first investor dares to trigger the “right respondent” mechanism. Despite the clarification that the latter brings into the practice of attribution of the Union’s and Member States’ international responsibility, the arbitrators will still face a challenging task of wrapping their internationally focused minds around the “right” but still possibly complicated respondent. If the Commission pursues its publicized will to seize the CJEU so as to clarify the intra-EU division of investment-related competences, the assessment that the CJEU will make of the main variables framing the current legal developments will inject new dynamics into the search for an appropriate model of the Union’s and Member States’ role in intra/extra European foreign investment regulation.

343