CYIL 2015

334

MAGDALENA LIČKOVÁ

CYIL 6 ȍ2015Ȏ

was not properly determined and that the correct respondent should have been the

“other” European actor, i.e. the Union rather than a Member State and

vice versa

The ISDS provisions of the EUSFTA and CETA constitute the first examples of

an international investment dispute resolution mechanism that aims at articulating

in a binding way the participation of the Union and the Member States to arbitration

proceedings. It also aims at ensuring that the responsibility for a given measure be

determined at the intra-EU level (unless the above-referred to deadline for such

determination is missed) and that the investment tribunal will not interfere with

such determination (although in this respect both instruments are not identical).

There are no precedents in the field of international investment dispute settlement

that could directly inform the future operation of this arrangement. Whereas one can

point to the ECT as the only international instrument equipped with ISDS provisions

to which the Union and its Member States became party in the pre-Lisbon period,

the ECT is a mixed agreement which is a quality that the EUSFTA and CETA may

or may not acquire. If they are concluded as Union-only agreements, the ECT has

little to offer in terms of arbitration experience because, quite noticeably, after almost

two decades of the EU’s participation to the ECT, nobody seems to have ever sought

to sue the Union, alone or in combination with its Member States, whose role as

respondent thus remains an unknown exercise, be it in intra or extra EU settings.

If the EUSFTA and CETA become mixed agreements, the ECT example will

remain limited. Besides the mentioned fact that the Union remains absent of the

ECT arbitration docket, the ECT actually does not itself reflect on the mixed

participation of the European actors and does not address the modalities of their

respective respondent status. The only document that attempts to provide for such

an arrangement in the ECT context is the following part of the statement addressed

by the Union to the ECT Secretariat:

“The European Communities and their Member States have both concluded the Energy

Charter Treaty and are thus internationally responsible for the fulfilment of the obligations

contained therein, in accordance with their respective competences.

The Communities and the Member States will, if necessary, determine among them who

is the respondent party to arbitration proceedings initiated by an Investor of another

Contracting Party. In such case, upon the request of the Investor, the Communities and

the Member States concerned will make such determination within a period of 30 days.”

2080 UNTS 95; 34 ILM 360 (1995). 98/181/EC, ECSC, Euratom: Council and Commission

Decision of 23 September 1997 on the conclusion, by the European Communities, of the Energy

Charter Treaty and the Energy Charter Protocol on energy efficiency and related environmental aspects,

OJ L 69, 9 Mar. 1998, p. 1.

The responsibility arising under the investment related provision of the ECT constitutes a relevant

element, both from the intra and extra-EU perspective, depending on who is suing whom in a particular

case.

Statement submitted by the European Communities to the Secretariat of the Energy Charter pursuant

to Article 26(3)(b)(ii) of the Energy Charter Treaty, OJ 1998, L No. 69, p. 115.