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MAGDALENA LIČKOVÁ

CYIL 6 ȍ2015Ȏ

who would be acting. The proposal of the Financial Responsibility Regulation seems

to indicate that where the Member States act as respondents they will do so within

the empowerment basis foreseen in Art. 2(1) TFEU but this EU-law empowerment

cannot establish the international-law standing of the Member States in absence of

their own international-law engagement. This can be compared and contrasted with

those situations in which the Union mandates its Member States to act internationally

“in its interest” or “on its behalf ” e.g. to conclude international instruments, that the

Union

cannot

conclude although it has been endowed with the corresponding EU-

law competences (because such international instruments are open to States only).

107

When the Member States act under such circumstances, it is they and not the Union

who enter into the respective commitments on the international plane.

108

Unlike

those cases where the Member States enter into international law engagements, here

they would be only empowered to respond to international obligations that they have

not contracted (although that would certainly apply to them as a matter of European

law). Therefore, to make their participation possible in the Union-only scenario would

require a creative EU-specific approach to the investment tribunal personal competence

relying on a different expression of executive federalism that would be procedural and

isolated from its substantive competence-based version.

Even if the Member States become parties to the CETA/EUSFTA which will make

the assessment of the tribunal’s personal competence much easier, the “right respondent”

rule will have to be tested against the tribunal’s competence to attribute and assess such

respondent’s international liability as a matter of international law. Therefore, what

will happen if the arbitral tribunal concludes that, as a matter of international law,

the measure complained of is not attributable to the “right respondent” determined

by the Union? The CETA confirms explicitly that “[t]he tribunal shall be bound

by the determination” made by the Union or “if no such determination has been

communicated”, by the default rules that apply instead. This presumably sets the limits

to the arbitral tribunal personal competence. However, the EUSFTA does not seem to

contain a similar clause as to the binding nature of the “right respondent rule” upon

the tribunal. Does this mean that the latter will still proceed on the assumption that

the attribution is established in respect of the “right respondent” determined by the

Union even if this is not the case under the rules of international responsibility? Or

107

CREMONA, M., “Member States Agreements as Union Law”

CANNIZZARO, E., PALCHETTI, P.,

WESSEL, R.A., (eds.),

International Law as Law of the European Union

, Leiden, Boston: Martinus

Nijhoff Publishers, 2012, x-415 p., pp. 291-324, esp. pp. 295-315; ROSAS, A., “The Status in EU Law

of International Agreements Concluded by EU Member States”,

FILJ

(2011) vol. 34, n° 5, pp. 1304-

1345, esp. 1331-1335.

108

CJEU (Fifth Chamber), 16 Jan. 2003,

Libor Cipra & Vlastimil Kvasnicka,

C-439/01,

ECLI:EU:C:2003:31, NEFRAMI, E., “Duty of loyalty: Rethinking its Scope Through its Application

in the Field of EU External Relations”,

CML. Rev

. (2010) vol. 47, No. 2, pp. 323-359, p. 352;

LIČKOVÁ, M.,

La dynamique de la complexité …

, quoted above, fn. No. 45, par. 185-219.