CYIL 2015

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” in 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.

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