CYIL 2015

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, 84 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. 85 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.” 86 84 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. 85 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. 86 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.

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