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POSTǧLISBON EXERCISE OF EU COMPETENCE IN THE FIELD OF FOREIGN INVESTMENT…
will it frame this situation by the scenario identified in the DARIO109 concerning the
“conduct acknowledged and adopted by an international organization as its own”
as well as by the corresponding rule in the DARS,110 depending on who will be
acknowledging whose conduct?
Moreover, while the arbitrators are supposed to be experts in international law111
and not necessarily in European law (the “dual nature” of the latter notwithstanding112 ),
the operation of the “right respondent” mechanism as well as its subsequent testing
against the rules of international law cannot be isolated from the bold reminder
made by the CJEU in its Opinion 2/13113 concerning the draft accession agreement
of the European Union to the ECHR. Although the ECHR must be distinguished
from the trade/investment treaties because the intra-EU division of competences
does not follow the same logic,114 the Opinion 2/13 seems to indicate that EU law
(a contrario international law) must be the ultimate authority determining not only
intra-EU competence but also the related respondent status as well as the attribution
of international responsibility over the challenged measure.115
The concern for a mechanism ensuring that applications (claims) under the ECHR
“are correctly addressed to the Member States and/or the Union as appropriate” is
voiced in Art. 1 b) of the Protocol n° 8 to the TFEU and TEU and the drafters of the
accession agreement have attempted to reflect this requirement in the “co-respondent
mechanism” provided under Art. 3 of the latter instrument.116 This attempt has partly
failed because, as the CJEU held, it did not respect in all of its aspects the specificity
of European law. Indeed, the CJEU disapproved that the ECtHR was going to be
equipped with the power to decide whether a request from one of the European
actors to participate as co-respondent relied on “plausible” reasons as to the link with
109 Art. 9 DARIO “Conduct which is not attributable to an international organization under articles 6 to 8
shall nevertheless be considered an act of that organization under international law if and to the extent
that the organization acknowledges and adopts the conduct in question as its own.”
110 Art. 11 of the DARS foresees the possibility for a State to acknowledge and adopt as its own a conduct
performed by another State or, one could argue by analogy, by an international organization. See above,
fn. No. 95.
111 Art. 9.18(6) EUSFTA.
112 See AES award quoted above, fn. No. 5, par. 7.6.6.
113 Opinion of the CJEU (Full Court) of 18 December 2014, 2/13, Accession of the European Union
to the European Convention for the Protection of Human Rights and Fundamental Freedoms,
ECLI:EU:C:2014:2454.
114 See e.g.: “Also at the heart of that legal structure [of the Union] are the fundamental rights recognised
by the Charter […], respect for those rights being a condition of the lawfulness of EU acts, so that
measures incompatible with those rights are not acceptable in the EU […].” Par. 169 of the Opinion
2/13, quoted above, fn. No. 113.
115 Opinion 2/13 quoted above, fn. No. 113, par. 220 and 234. See the Draft Accession Agreement,
finalized as of 5 Apr. 2013, available at
Meeting_reports/47_1(2013)008rev2_EN.pdf.
116 Draft Accession Agreement, quoted above, fn. No. 115.