353 / 464
339
POSTǧLISBON EXERCISE OF EU COMPETENCE IN THE FIELD OF FOREIGN INVESTMENT…
development due to lack of practice,
102
and although the main rules articulated therein
do not show much support for EU executive federalism, one of the final “General
Provisions” preserves the applicability of
lex specialis
103
and foresees therefore a carve-
out that can accommodate a specific model applicable to the European Union and
its Member States provided, we can add, that such a model can be identified,
104
which the ILC eventually declined to do. So far, the competence-based model of
executive federalism seems to be one of them and quite noticeably, neither the
Financial Responsibility Regulation nor the EUSFTA and CETA have been designed
to embrace it.
105
B. Extra-Intra-EU Testing of the “Right Respondent” Rule
The “right respondent” rule in the EUSFTA and CETA arguably aims to avoid
the above described uncertainties by putting into place a mechanism that would do
away right at the beginning of any arbitral proceedings with hesitations as to who
should appear before the investment tribunal to respond to a given claim. As noted
above, if the Union manages to answer the “right respondent” interrogation within
the defined timeframe, its response can ensure projection of the rules defined in the
Financial Responsibility Regulation. However, these legal mechanisms still raise some
questions as to their interplay with the rules of international responsibility that the
investment arbitral tribunal will apply. To begin with, it is unclear whether they are
supposed to operate if both the Union and the Member States participate in the trade
agreement concerned or also if the latter is concluded as Union-only. While under a
mixed participation, this mechanism can certainly be used, it is uncertain how it will
be triggered if only the Union is party to the EUSFTA/CETA. As noted above, it will
not be possible for the Member States to acquire an autonomous respondent status
in an arbitration proceeding if they are not themselves parties to the underlying
agreement unless they give consent to arbitration
ad hoc
(with further interrogations
that this would entail
106
) or unless they can be considered as legal representatives
of the Union, in which case it would still be the Union and not the Member States
102
DARIO, quoted above, fn. No. 87, pp. 2-3, pt. 5.
103
Art. 64 DARIO quoted above, fn. No. 87: “These articles do not apply where and to the extent that the
conditions for the existence of an internationally wrongful act or the content or implementation of the
international responsibility of an international organization, or a State in connection with the conduct
of an international organization, are governed by special rules of international law. Such special rules of
international law may be contained in the rules of the organization applicable to the relations between
an international organization and its members”.
104
ŠTURMA, P., “The Responsibility of International Organizations and Their Member States” in
RAGAZZI, M., (ed.)
Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie
,
Leiden, Boston: Martinus Nijhoff Publishers, 2013, xlvi, 469 p., pp. 313-324, p. 319.
105
As the Commission notes in its proposal of the Financial Responsibility Regulation, the attribution
–related provisions are rather commanded by the call of pragmatism. See the proposal quoted above fn.
No. 73, p. 5.
106
See above.