CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ RESPONSIBILITY FOR VIOLATIONS OF INVESTORS’ RIGHTS … of opinions concerning the possible existence of a special rule on attribution, according to which the conduct of EU Member States should be attributed to the EU when they implement binding acts of the Union, and points out the different conclusions reached by international courts and tribunals on this issue (in particular by confronting the approach of the WTO panels with that of the ECtHR). 24 Thus, even though the ILC expressly admitted that responsibility of international organizations can be governed by special rules, it made no statements as regards the existence of the special rule applicable to international responsibility of the EU, not speaking about the eventual content of such rule. Considering the diverging practice of international courts and tribunals, the existence of such a rule cannot be considered established yet. However, the explicit confirmation by DARIO that the existence of special regimes of international responsibility is possible is of utmost importance for the EU international investment policy. Although the existence of a special rule on the responsibility of the Union de lege lata has been contentious, there is nothing to preclude the Union from creating special rules governing the responsibility for breaches of its IIAs with third countries, in particular for the purposes of effective settlement of investment disputes. It is indisputable that such specific rules can be incorporated in the IIAs with third countries, in which case they would be binding inter partes . More doubts can be expressed as to whether the Union may establish such rules with effect to its relationship with third countries unilaterally by adopting an autonomous measure such as regulation. It is true that Article 64 DARIO also refers to ‘the rules of the organization applicable to the relations between an international organization and its members’. The wording of the provision as well as the ILC’s commentary, however, seem to suggest that the rationale behind this passage was that the internal rules of the organization may govern various aspects of responsibility of the international organization vis-à-vis its Member States and vice versa . The idea that internal rules would predetermine the extent and the content of responsibility of the international organization and its Member States vis-à-vis third countries, in particular where they would narrow the extent of the responsibility under general rules ( e.g. by providing for exclusive responsibility of the international organizations where the general rules establish joint responsibility with its Member States) seems much more problematic. Finally, it should be noted that there are many practical examples evidencing that the Union is eager to assume international responsibility instead of the Member States in all areas which seem to fall within the scope of its competence, disputes in the WTO being the most illustrative example. After the entry of the Lisbon Treaty into force, the Commission began to assert this approach with new vigour in the field of foreign investment. Already in its 2010 Communication on the comprehensive European international investment policy, the Commission predicted: The European Union, represented by the Commission, will defend all actions of EU institutions. Given the exclusive external competence, the Commission takes the view that the European Union will also be the sole defendant regarding any measure taken by a Member State which affects investments by third- country nationals or companies falling within the scope of the agreement concerned. 25 24 Ibid., at 100-102. 25 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: Towards a comprehensive European international investment policy, COM(2010)343 final, 5 (7 July 2010), 10.

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