CYIL vol. 8 (2017)

TOMÁŠ FECÁK CYIL 8 ȍ2017Ȏ the respective third countries, but rather add further confusion to the matter. In particular, the discussed provisions neither establish not confirm the alleged special rule (lex specialis) on the exclusive international responsibility of the Union. In fact, while the agreements do not specify which entity should bear international responsibility, the ‘residual’ criteria for identification of the respondent to be applied by the tribunal in the event the Union does not make unilateral determination suggest that attribution of the conduct does indeed plays a role in the allocation of international responsibility. The entire concept of the regulation in conjunction with the relevant provisions of the EU IIAs should be probably rationalized as a special regime of international law detaching the question of identification of the respondent in a dispute from international responsibility in general. The tribunal deciding a dispute should not be concerned with the allocation of international responsibility as such. The entity which will be determined by the Union as the respondent will be for the purposes of the investor-state dispute settlement treated as internationally responsible for the conduct challenged by the investor and will have to comply with the award rendered. A tribunal can and should impose obligations on the Union or Member State having been named as the respondent even if it might be of the opinion that it is the other entity which should be internationally responsible for the disputed conduct. This concept seems to be reaffirmed by an express provision, replicated in all agreements, stating that if the EU or a Member State of the EU is the respondent pursuant to rules set out above, neither the EU, nor the Member State may assert the inadmissibility of the claim, lack of jurisdiction of the tribunal or otherwise object to the claim or award on the ground that the respondent was not properly determined. In other words, the issues related to identification of the proper respondent should not negatively affect the investor. This rationalization is also confirmed by other dispute-settlement related provisions of the agreements, in particular those concerning awards. According to these provisions, a tribunal can make award against the respondent and awards shall be binding between the disputing parties in respect of a particular dispute, who should recognize and comply with the awards without delay. By not referring to contracting parties to the agreement but to disputing parties, the CETA, EUSFTA and VIEUFTA seem to confirm that as soon as the Union or the Member State is named the respondent, the respective entity is to be formally treated as internationally responsible regardless of any other criteria of allocation of international responsibility. This, inter alia , to a certain extent mitigates one of the defects of the regulation, which is lack of clear rules on payment of awards to the investor where a Member State is the respondent (as discussed above). Where there is an award against the Member State as the respondent, such Member State will be internationally obliged to comply with such award by virtue of special provisions of the respective EU IIA. The solutions adopted by the Union as outlined above carry an important, though probably unintended consequence. It can be argued that in order for this concept to work properly, the Union investment agreements will have to be necessarily concluded as mixed. If EU Member States are to be named as respondents in disputes with investors and are to be bound to comply with the awards regardless of the general criteria for allocation of international responsibility, it seems inevitable that they are themselves the parties to the international agreements creating such a regime. Even assuming that the status of respondent can be detached from general international responsibility under special rules of international law, it can be doubted that determination of a Member State as respondent by the EU in

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