357 / 464
343
POSTǧLISBON EXERCISE OF EU COMPETENCE IN THE FIELD OF FOREIGN INVESTMENT…
the EU and its Member States on the sharing of responsibility” (understood broadly)
that falls under and defies the latter’s exclusive jurisdiction, then the question arises
whether this means a mandatory pre-arbitration referral of the “right respondent
question” to the CJEU in each and every arbitration, especially if the new trade/
investment instruments are concluded as mixed. While such an interpretation seems
too far-stretched as it would mean more generally that the CJEU would have to
be consulted in any international proceedings involving the Member States and
the Union (contrary to the existing practice under the above referred international
agreements), further course of action will be possibly informed by the future CJEU’s
opinion that the Commission is expected to request concerning the EUSFTA.
Conclusion
This article looks into the post-Lisbon exercise by the Union of its foreign
investment-related competence by turning first to “EU-domestic” developments
before addressing its extra-EU facet. While the Extra-EU BITs Regulation seems
to have worked smoothly so far, and its implementation does not seem hampered
by the ongoing discussion concerning the scope of the Union’s new competence,
further challenges may lurk ahead especially when the respective empowered extra-
EU BITs have to be terminated in order to be replaced by agreements negotiated by
the Union. Also, the extra-EU BITs have revived interest in the somewhat rebellious
“bipolar” Art. 351 TFEU that continues to be a relevant normative element for the
Member States’ extra-EU BITs and the further application thereof. Fon its part,
the Financial Responsibility Regulation still awaits a first opportunity to be tested,
and such an opportunity may come in connection with a claim launched under
the ECT. Beyond this context, however, it will not be activated until a first of the
negotiated or currently negotiated instruments enters into force and until a first
investor dares to trigger the “right respondent” mechanism. Despite the clarification
that the latter brings into the practice of attribution of the Union’s and Member
States’ international responsibility, the arbitrators will still face a challenging task of
wrapping their internationally focused minds around the “right” but still possibly
complicated respondent. If the Commission pursues its publicized will to seize the
CJEU so as to clarify the intra-EU division of investment-related competences, the
assessment that the CJEU will make of the main variables framing the current legal
developments will inject new dynamics into the search for an appropriate model
of the Union’s and Member States’ role in intra/extra European foreign investment
regulation.