CYIL 2015

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MAGDALENA LIČKOVÁ

CYIL 6 ȍ2015Ȏ

or whether it violates investors’ acquired rights seems to be subject to controversy

evolving around the nature of the rights granted by the given investment treaty and

a possible challenge before an investment tribunal cannot be excluded.

This issue

will be of less relevance if, and to the extent that, the terminated extra-EU BIT is less

attractive to the eye of the concerned investors than the protection offered by the new

instrument concluded by the Union.

Independently of any indirect international-law ramifications that the Extra-

EU BITs Regulation may have, this instrument remains focused on intra-EU

management of the extra-EU BITs. Intra-EU focus is also what, overall, characterizes

EU regulation on intra-EU apportionment of financial responsibility that may arise in

investment arbitration, which is another piece of EU legislation adopted as a part

of the preparation for the future exercise of EU foreign investment competence.

Besides its mainly EU-domestic focus, this regime aims however, incidentally and

debatably, to induce some international legal effects.

B. Intra-EU Management of Investment-Related Financial Responsibility

A second major piece of EU legislation adopted in view of the future exercise by

the Union of its powers in the field of foreign investment protection is Regulation

No. 912/2014 establishing a framework for managing financial responsibility linked to

investor-to-state dispute settlement tribunals established by international agreements

to which the European Union is party

(“Financial Responsibility Regulation”).

This regulation lays down rules apportioning at the intra-EU level the financial

obligations incurred in an investment arbitration.

On the procedural side, it aims

at determining whether the Union or a Member State will act as respondent, and

it also gives guidance as to how payments under awards and settlement agreements

shall be processed. It connects with the above referred discussion on the scope of

EU competence over foreign investment in as much as it explicates that neither its

existence nor its application affects the intra-EU division of competences. Therefore

For arguments that the law of treaties allows contracting parties to abrogate survival clauses through

mutual agreement extinguishing unexercised rights of investors (i.e. rights in which no claim was

launched prior to termination) see VOON, T., MITCHELL, A., MUNRO, J., “Parting Ways: The

Impact of Mutual Termination of Investment Treaties on Investor Rights”,

ICSID Review

, vol. 29,

No. 2 (2014), pp. 451-473. For a different view including more investor-friendly arguments see

HARRISON, J., “The Life and Death of BITs: Legal Issues Concerning Survival Clauses and the

Termination of Investment Treaties”,

J. World Investment & Trade

(2012), vol. 13, pp. 928-950.

Regulation (EU) No. 912/2014 of the European Parliament and of the Council of 23 July 2014

establishing a framework for managing financial responsibility linked to investor-to-state dispute

settlement tribunals established by international agreements to which the European Union is party, OJ

L 257, 28. 8. 2014, p. 1210.

See Art. 2 g) and b) of the Financial Responsibility Regulation quoted above, fn. No. 56.