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International Responsibility of the EU and the Member States for Breaches of EU IIPAs Under Traditional Rules

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Responsibility of the EU and the Member States under EU International Investment Protection Agreements

Part of the book series: European Yearbook of International Economic Law ((EYIELMONO,volume 6))

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Abstract

This chapter explores the international responsibility of the EU and its Member States for breaches of EU IIPAs. The answer to that question is to be found within the most authoritative rules on international responsibility to date, i.e. the ARS and the ARIO (together the ILC Articles), and in international case law. These sources of law are called here ‘traditional rules’ of international responsibility.

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Notes

  1. 1.

    Bart van Vooren and Ramses A Wessel (2014) EU External Relations Law: Text, Cases and Materials. Cambridge University Press), pp. 4 et seq.

  2. 2.

    Kuijper/Paasivirta, above Chap. 2, fn. 155, p. 37.

  3. 3.

    This becomes clear when looking at Articles 17 and 61 ARIO using the expression ‘incurs responsibility’.

  4. 4.

    ARIO Commentary, Chapter IV, para. 2: ‘The pertinent provisions on the responsibility of States for internationally wrongful acts are based on the premise that aid or assistance, direction and control, and coercion do not affect attribution of conduct to the State which is aided or assisted, under the direction or control, or under coercion’.

  5. 5.

    Article 19 ARIO reads: ‘This Chapter is without prejudice to the international responsibility of the State or international organization which commits the act in question, or of any other State or international organization’.

  6. 6.

    Article 63 ARIO reads: ‘This Part is without prejudice to the international responsibility of the international organization which commits the act in question, or of any State or other international organization’.

  7. 7.

    In this direction, Hoffmeister, above Chap. 2, fn. 243, p. 727; Pieter Jan Kuijper (2010) Introduction to the Symposium on Responsibility of International Organizations and of (Member) States: Attributed or Direct Responsibility or Both?’ 7(1) IntlOrgLRev, pp. 30–31.

  8. 8.

    Article 7 ARIO reads: ‘The conduct of an organ of a State […] that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct’. The provision emulates Article 6 ARS, which indisputably enshrines a rule of exclusive attribution. See ARS Commentary, Article 6, para. 1.

  9. 9.

    See Talmon, above Chap. 2, fn. 76, p. 413.

  10. 10.

    ARIO Commentary, Chapter II, para. 4: ‘Although it may not frequently occur in practice, dual or even multiple attribution of conduct cannot be excluded. Thus, attribution of a certain conduct to an international organization does not imply that the same conduct cannot be attributed to a State; nor does attribution of conduct to a State rule out attribution of the same conduct to an international organization’.

  11. 11.

    Advocating the possibility of dual attribution under the ARIO, Second Report on the Responsibility of International Organizations by Special Rapporteur Giorgio Gaja, ILC 56th session, UN Doc A/CN.4/541, 2 April 2004, para. 8; Nollkaemper, above Chap. 2, fn. 80, pp. 331–332; Francesco Messineo (2014) Attribution of Conduct. In: André Nollkaemper and Ilias Plakokefalos (eds.) Principles of Shared Responsibility in International Law – An Appraisal of the State of the Art. Cambridge University, pp. 73–76; Talmon, above Chap. 2, fn. 76, p. 413.

  12. 12.

    Dimopoulos, above Chap. 2, fn. 39, p. 259; with respect to EU acts breaching IIPAs, see Happ, above Chap. 2, fn. 261, p. 77.

  13. 13.

    See Roe/Happold, above Chap. 2, fn. 39, pp. 179–180.

  14. 14.

    See Happ, above Chap. 2, fn. 261, pp. 77 et seq.

  15. 15.

    See Dolzer/Schreuer, above Chap. 2, fn. 280, pp. 98 et seq, pp. 130 et seq.

  16. 16.

    Cf. Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC [2014] OJ L 127, p. 1.

  17. 17.

    Hans Kelsen (1967) Pure Theory of Law (translated from the 2nd German edn by Knight M). University of California Press, p. 292.

  18. 18.

    Christiane Ahlborn (2013) To Share or Not to Share? The Allocation of Responsibility between International Organizations and their Member States. 88(3–4) JIntlPOrg, pp. 50–51; Nollkaemper, above Chap. 2, fn. 80, p. 335.

  19. 19.

    ARS Commentary, Chapter II, para. 6.

  20. 20.

    Kuijper/Paasivirta, above Chap. 2, fn. 155, p. 54.

  21. 21.

    Article 11 ARS reads: ‘Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own’.

  22. 22.

    Article 9 ARIO reads: ‘Conduct which is not attributable to an international organization under articles 6 to 8 shall nevertheless be considered an act of that organization under international law if and to the extent that the organization acknowledges and adopts the conduct in question as its own’.

  23. 23.

    On the concept of ‘executive federalism’, see Robert Schütze (2010) From Rome to Lisbon: ‘Executive Federalism’ in the (New) European Union. 47(5) CMLRev, pp. 1385–1427.

  24. 24.

    This is the case for competition policy, trade defence, social or regional funds, and personnel matters. See Article 291(2) TFEU.

  25. 25.

    Article 291(1) TFEU reads: ‘Member States shall adopt all measures of national law necessary to implement legally binding Union acts’.

  26. 26.

    On the notion of ‘normative control’, see Andrés Delgado Casteleiro (2011) The International Responsibility of the European Union: From Competence to Normative Control. PhD thesis, European University Institute; Kuijper/Paasivirta, above Chap. 2, fn. 76, p. 127; Kuijper/Paasivirta, above Chap. 2, fn. 155, p. 55; Talmon, above Chap. 2, fn. 76, pp. 412–414; Hoffmeister, above Chap. 2, fn. 243, pp. 741–743; Nollkaemper, above Chap. 2, fn. 80, pp. 335–337; Jean d’Aspremont (2014) A European Law of International Responsibility? The Articles on the Responsibility of International Organizations and the European Union. In: Vasiliki Kosta, Nikos Skoutaris and Vassilis Tzevelekos (eds.) The EU Accession to the ECHR. Hart Publishing, p. 76; José Manuel Cortés Martín (2013) Exceptionalism in International Law? The European Union and the System of International Responsibility. In: Maurizio Ragazzi (ed.) Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie. Martinus Nijhoff Publishers, pp. 194–199; Dimopoulos, above Chap. 2, fn. 39, p. 268; Christiane Ahlborn (2011) The Rules of International Organizations and the Law of International Responsibility. 8(2) IntlOrgLRev, pp. 450–458; Arman Sarvarian (2014) The EU Accession to the ECHR and the Law of International Responsibility. In: Vasiliki Kosta, Nikos Skoutaris and Vassilis Tzevelekos (eds.) The EU Accession to the ECHR. Hart Publishing, pp. 90–91.

  27. 27.

    Hoffmeister, above Chap. 2, fn. 243, p. 746; Talmon, above Chap. 2, fn. 76, p. 414: ‘It is therefore suggested that attribution of conduct be based on the normative criterion of performance of functions under the rules of the organization’.

  28. 28.

    Hoffmeister, above Chap. 2, fn. 243, pp. 741–743, at p. 742: ‘When it is established that Union law governs both the substantive legality of and the available remedies for a measure, then the Union exercises normative control over it’; Nollkaemper, above Chap. 2, fn. 80, p. 335.

  29. 29.

    Ibid.

  30. 30.

    ARIO Commentary, Article 64, paras. 2 et seq, and at para. 2: ‘By way of illustration, it may be useful to refer to one issue which has given rise in practice to a variety of opinions concerning the possible existence of a special rule: that of the attribution to the European Community (now European Union) of conduct of States members of the Community when they implement binding acts of the Community’. The Commentary continues citing the conflicting stances of WTO jurisprudence favouring attribution to the EU, and ECtHR case law favouring attribution to the Member States.

  31. 31.

    Seventh Report on the Responsibility of International Organizations by Special Rapporteur Giorgio Gaja, ILC 61st session, UN Doc A/CN.4/610, 27 March 2009, paras. 31–33, and at p. 96: ‘It seems preferable at the current stage of judicial developments not to assume that a special rule has come into existence to the effect that, when implementing a binding act of the European Communities state authorities would act as organs of the European Community’; see also D’Aspremont, above Chap. 3, fn. 26, p. 78.

  32. 32.

    See Seventh Report on the Responsibility of International Organizations by Special Rapporteur Giorgio Gaja, ILC 61st session, UN Doc A/CN.4/610, 27 March 2009, para. 33, where Special Rapporteur Gaja invoked Bosphorus Hava Yollari Turizm v Ireland [GC] Application No 45036/98, 30 June 2005, ECHR Reports 2005-VI, para. 153; and Joined Cases C-402/05 P and C-415/05 Kadi [2008] ECR I-06351. In the Eight Report on the Responsibility of International Organizations by Special Rapporteur Giorgio Gaja, ILC 63rd session, A/CN.4/640, 14 March 2011, p. 37, Special Rapporteur Gaja invoked Kokkelvisserij v The Netherlands [GC] Application No 13645/05, 20 January 2009. Recently, Gaja noted: ‘The ILC articles on the responsibility of international organizations start from the premise that, as a rule, acts of member States are not attributable to the organization’, see Giorgio Gaja (2013) The Relations Between the European Union and its Member States from the Perspective of the ILC Articles on Responsibility of International Organizations. SHARES Research Paper 25. www.sharesproject.nl/wp-content/uploads/2013/06/SHARES-RP-25-final.pdf. Accessed 26 August 2018, p. 5.

  33. 33.

    See Talmon, above Chap. 2, fn. 76, p. 412: ‘This general rule on attribution of conduct to an international organization seems wide enough to cover the relationship between the EC and the authorities of its member States. The latter may be regarded as agents of the EC’; Ahlborn, this chapter, fn. 26, p. 453; Messineo, this chapter, fn. 11, pp. 73–76, stating at p. 76: ‘If, according to EU law, certain organs of member states are assigned certain functions of the EU – namely, the implementation of EU measures under Article 291(1) of the Treaty on the Functioning of the European Union – each act of implementation becomes a situation in which the organs of the state are de jure, and not de facto, organs of the EU for the purposes of Article 5 of the ARIO [now Article 6 ARIO]’; see also Roe/Happold, above Chap. 2, fn. 39, p. 180.

  34. 34.

    See e.g. Kuijper/Paasivirta, above Chap. 2, fn. 155, p. 54: ‘The ‘organic model’ does not capture the core features of the EU action, since the Member States are seen as remaining sovereign and not constituting organs of the organisation in a formal sense’, and at p. 68: ‘The ILC does not admit to any significant degree to the EU’s operational realities based on executive federalism, but turns it into an example of the traditional model of international organisations acting through their organs’.

  35. 35.

    See Second Report on the Responsibility of International Organizations by Special Rapporteur Giorgio Gaja, ILC 56th session, UN Doc A/CN.4/541, 2 April 2004, para. 13.

  36. 36.

    Andrès Delgado Casteleiro (2014) United We Stand: The EU and its Member States in the Strasbourg Court. In: Vasiliki Kosta, Nikos Skoutaris and Vassilis Tzevelekos (eds.) The EU Accession to the ECHR. Hart Publishing, p. 107; Schütze, this chapter, fn. 23, pp. 1419–1420. But see Kuijper/Paasivirta, above Chap. 2, fn. 76, pp. 126–127; Kuijper/Paasivirta, above Chap. 2, fn. 1, p. 192; Hoffmeister, above Chap. 2, fn. 243, pp. 739–743.

  37. 37.

    See Sarvarian, thischapter, fn. 26, p. 91.

  38. 38.

    Cf. Ahlborn, thischapter, fn. 26, p. 453; Kuijper/Paasivirta, above Chap. 2, fn. 1, p. 192; Dimopoulos, above Chap. 2, fn. 39, pp. 260–261; Hoffmeister, above Chap. 2, fn. 243, pp. 740–741; Messineo, this chapter, fn. 11, p. 76; Joseph H H Weiler and Nicolas J S Lockhart (1995) “Taking Rights Seriously” Seriously: The European Court of Justice and its Fundamental Rights Jurisprudence. 32(1) CMLRev, pp. 73–74; René Barents (2012) The Fallacy of European Multilevel Constitutionalism. In: Matej Avbelj and Jan Komárek (eds.) Constitutional Pluralism in the European Union and Beyond. Hart Publishing, p. 165; Paul Craig and Gráinne de Búrca (2015) EU Law, Text, Cases, and Materials, 6th edn. Oxford University Press, pp. 410–411; see also the Opinion of AG Jacobs in Case C-5/88 Hubert Wachauf [1989] ECR 2609, para. 22.

  39. 39.

    Draft Revised Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms, Fifth Negotiation Meeting between the CDDH Ad Hoc Negotiation Group and the European Commission on the Accession of the European Union to the European Convention on Human Rights, Final Report to the CDDH, 10 June 2013, Appendix I. http://www.echr.coe.int/Documents/UE_Report_CDDH_ENG.pdf. Accessed 26 August 2018.

  40. 40.

    Draft Explanatory Report to the Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms, Fifth Negotiation Meeting between the CDDH Ad Hoc Negotiation Group and the European Commission on the Accession of the European Union to the European Convention on Human Rights, Final Report to the CDDH, 10 June 2013, Appendix V, http://www.echr.coe.int/Documents/UE_Report_CDDH_ENG.pdf. Accessed 26 August 2018, para. 23.

  41. 41.

    See again this chapter, fn. 11.

  42. 42.

    Providing a detailed analysis of Article 7 ARIO, Messineo, this chapter, fn. 11, pp. 88–96.

  43. 43.

    But see Steinberger, above Chap. 2, fn. 7, pp. 850–853.

  44. 44.

    ARIO Commentary, Article 7, paras. 6 et seq; see also Behrami v France; Saramati v France, Germany and Norway [GC] Application No 71412/01 and 78166/01, 2 May 2007.

  45. 45.

    Hoffmeister, above Chap. 2, fn. 243, pp. 726–727; Dimopoulos, above Chap. 2, fn. 39, p. 262; Ringbom, above Chap. 2, fn. 81, p. 160.

  46. 46.

    Article 15 ARIO concerns international organisations directing and controlling a state in the commission of an internationally wrongful act. It reads: ‘An international organization which directs and controls a State or another international organization in the commission of an internationally wrongful act by the State or the latter organization is internationally responsible for that act if: (a) The former organization does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that organization’.

  47. 47.

    Article 17(1) ARIO concerns the international organisation’s circumvention of its international obligations through decisions addressed to its members. It reads: ‘An international organization incurs international responsibility if it circumvents one of its international obligations by adopting a decision binding member States or international organizations to commit an act that would be internationally wrongful if committed by the former organization’.

  48. 48.

    Cf. Cortés Martín, above, this chapter, fn. 26, pp. 193–194; Talmon, above Chap. 2, fn. 76, p. 410; Hernández, above Chap. 2, fn. 10, pp. 651–652; Sarvarian, this chapter, fn. 26, p. 98; August Reinisch (2010) Aid or Assistance and Direction and Control between States and International Organizations in the Commission of Internationally Wrongful Acts. 7(1) IntlOrgLRev, pp. 63–77. But see Dimopoulos, above Chap. 2, fn. 39, pp. 263–264; Steinberger, above Chap. 2, fn. 7, pp. 850–853; Kuijper, above Chap. 2, fn. 94, pp. 217–218; Ramses A Wessel (2011) Division of International Responsibility between the EU and its Member States in the Area of Foreign Policy, Security and Defence Policy. 3(3) ALF, pp. 37–40; Nollkaemper, above Chap. 2, fn. 80, p. 336.

  49. 49.

    ARIO Commentary, Article 15 ARIO, para. 4.

  50. 50.

    Bischoff, above Chap. 2, fn. 34, p. 1565; ARIO Commentary, Article 17, paras. 4, 6–7.

  51. 51.

    Bischoff, above Chap. 2, fn. 34, p. 1565.

  52. 52.

    See again Article 19 ARIO.

  53. 53.

    The WTO Treaties do not contain a contractually agreed lex specialis to international responsibility with respect to the EU and the Member States, such as a competence clause or a declaration of competence. See Steinberger, above Chap. 2, fn. 7, p. 840.

  54. 54.

    The ECHR framework will contain a lex specialis once the EU accedes to it. See below Sect. 4.1.1.

  55. 55.

    See for discussions of international responsibility of the EU and its Member States at the WTO, Marín-Durán, above Chap. 2, fn. 270; Andrés Delgado Casteleiro and Joris Larik (2013) The ‘Odd Couple’: The Responsibility of the EU at the WTO. In: Malcolm D Evans and Panos Koutrakos (eds.) The International Responsibility of the European Union. Hart Publishing, pp. 233–255.

  56. 56.

    WTO Panel Reports, Cases WT/DS62/R; WT/DS67/R; WT/DS68/R EC – Customs Classification of certain computer equipment (LAN).

  57. 57.

    WTO Panel Reports, Cases WT/DS62/R; WT/DS67/R; WT/DS68/R EC – Customs Classification of certain computer equipment (LAN), para. 4.15.

  58. 58.

    WTO Panel Reports, Cases WT/DS62/R; WT/DS67/R; WT/DS68/R EC – Customs Classification of certain computer equipment (LAN), para. 8.16.

  59. 59.

    Ibid, paras. 9.1–9.2. The issue of the proper respondent was not raised again on appeal: Appellate Body Reports, Cases WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, EC – Customs Classification of certain computer equipment (LAN), para. 57.

  60. 60.

    WTO Panel Report, Case WT/DS315/R EC–Selected Customs Matters, para. 7.553.

  61. 61.

    WTO Appellate Body Report, Case WT/DS315/AB/R EC–Selected Customs Matters, paras. 83–84.

  62. 62.

    WTO Panel Report, Case WT/DS174/R EC–Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, paras. 7.98, 7.725.

  63. 63.

    WTO Panel Reports, Cases WT/DS375/R; WT/DS376/R, WT/DS377/R EC and MS–Tariff Treatment of Certain Information Technology, para. 8.2.

  64. 64.

    WTO Panel Report, Case WT/DS301/R, EC–Measures Affecting Trade in Commercial Vessels, para. 7.32.

  65. 65.

    WTO Panel Reports, Cases WT/DS291/R; WT/DS292/R; WT/DS293/R EC–Measures Affecting the Approval and Marketing of Biotech Products.

  66. 66.

    Ibid, para. 7.101.

  67. 67.

    WTO Panel and Appellate Body Reports, WT/DS/135/R; WT/DS/AB/135 EC–Measures Affecting Asbestos and Products containing Asbestos.

  68. 68.

    The EU enacted directives banning certain forms of asbestos before, yet these did not cover the form of asbestos covered by the decree.

  69. 69.

    WTO Panel Report, Case WT/DS316/R EC and certain MS–Measures Affecting Trade and Large Civil Aircraft.

  70. 70.

    Ibid, para. 7.171.

  71. 71.

    Ibid, para. 7.176.

  72. 72.

    Ibid, para. 7.175.

  73. 73.

    Ibid, para. 8.5. However, the Appellate Body only addressed recommendations at the EU only, see WTO Report of the Appellate Body, WT/DS316/AB/R EC and certain MS–Measures Affecting Trade and Large Civil Aircraft, paras. 1416 and 1418.

  74. 74.

    Cf. Marín-Durán, above Chap. 2, fn. 270, pp. 19–20, 23.

  75. 75.

    See DS409 EU and a MS–Seizure of Generic Drugs in Transit (Brazil/India 12 May 2010); DS452 EU and certain MS–Certain Measures Affecting the Renewable Energy Generation Sector (China, 5 November 2012); DS459 EU and certain MS–Certain Measures on the Importation and Marketing of Biodiesel and Measures Supporting the Biodiesel Industry (Argentina, 15 May 2013); DS476 EU and its MS–Certain Measures Relating to the Energy Sector (Russia, 20 July 2015).

  76. 76.

    Delgado Casteleiro/Larik, this chapter, fn. 55, pp. 238–244; Eeckhout, above Chap. 2, fn. 80, p. 456.

  77. 77.

    Delgado Casteleiro/Larik, this chapter, fn. 55, pp. 243–244; Marín-Durán, above Chap. 2, fn. 270, pp. 19–20; ARIO Commentary, Article 11, para. 3.

  78. 78.

    See in general on this proposition, Pieter Jan Kuijper (2013) Attribution – Responsibility – Remedy. Some Comments on the EU in Different International Regimes. 46(1) RevBDIntl, pp. 57–77; Hoffmeister, above Chap. 2, fn. 243, p. 745; Marín-Durán, above Chap. 2, fn. 270, pp. 21 et seq, calling the approach of determining international responsibility by looking at the nature of obligations and the remedy system the ‘(internal) competence/remedy approach’.

  79. 79.

    Kuijper, this chapter, fn. 78, p. 67.

  80. 80.

    Thomas Sebastian and Anthony Sinclair (2013) Remedies in WTO Dispute Settlement and Investor-State Arbitration: Contrasts and Lessons. In: Jorge A Huerta-Goldman, Antoine Romanetti and others (eds.) WTO Litigation, Investment Arbitration, and Commercial Arbitration. Kluwer Law International, pp. 276–279.

  81. 81.

    Cf. Article XVI:4 WTO Agreement.

  82. 82.

    See above Sect. 2.3.1.2.3.2.1.

  83. 83.

    M & Co v Germany, Decision of the European Commission of Human Rights, Application No 13258/87, 9 February 1990, Decisions and Reports, Vol 64, p. 138.

  84. 84.

    Cantoni v France [GC] Application No 17862/91, 15 November 1996, ECHR Reports 1996-V, para. 32.

  85. 85.

    Bosphorus Hava Yollari Turizm v Ireland [GC] Application No 45036/98, 30 June 2005, ECHR Reports 2005-VI.

  86. 86.

    Ibid, para. 137.

  87. 87.

    Ibid, paras. 152–153.

  88. 88.

    Case C-84/95 Bosphorus [1996] ECR I-3978, paras. 13–18.

  89. 89.

    Kokkelvisserij v The Netherlands [GC] Application No 13645/05, 20 January 2009.

  90. 90.

    Bosphorus Hava Yollari Turizm v Ireland [GC] Application No 45036/98, 30 June 2005, ECHR Reports 2005-VI, paras. 155–156.

  91. 91.

    Kuijper/Paasivirta, above Chap. 2, fn. 155, pp. 66–68.

  92. 92.

    See for example, Hoffmeister, above Chap. 2, fn. 243, pp. 735, 739; Kuijper, above Chap. 2, fn. 94, pp. 211–212; James Crawford (2012) Brownlie’s Principles of Public International Law, 8th edn. Oxford University Press, p. 684: ‘It would be contrary to good sense if a State could avoid responsibility by creating an international organization’.

  93. 93.

    Matthews v The United Kingdom [GC] Application No 24833/94, 18 February 1999, ECHR Reports 1999-I, para. 32: ‘The Convention does not exclude the transfer of competences to international organisations provided that Convention rights continue to be ‘secured’. Member states’ responsibility therefore continues even after such a transfer’.

  94. 94.

    In Bosphorus Hava Yollari Turizm v Ireland [GC] Application No 45036/98, 30 June 2005, ECHR Reports 2005-VI, paras. 154–155, the ECtHR stated that a state could not free itself from its human rights obligations under the ECHR by transferring functions to an international organization, as ‘absolving Contracting States completely from their Convention responsibility in the areas covered by such transfer would be incompatible with the purpose and object of the Convention; the guarantees of the Convention could be limited or excluded at will, thereby depriving it of its peremptory character and undermining the practical and effective nature of its safeguards […] The State is considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention’.

  95. 95.

    See for the text of the provision this chapter, fn. 39 and accompanying text.

  96. 96.

    Explanatory Report to the ECHR Accession Agreement, para. 23.

  97. 97.

    Cf. below Sect. 4.1.1 on the co-respondent mechanism under the future mixed ECHR framework.

  98. 98.

    Kuijper, this chapter, fn. 78, pp. 73–75.

  99. 99.

    ECHR: Answers to frequently asked questions (30 April 2013) Accession by the European Union to the European Convention on Human Rights, p. 4.

  100. 100.

    Cf. this chapter, fn. 78.

  101. 101.

    Articles 41 and 45 ECHR.

  102. 102.

    Enzo Cannizzaro (2013) Beyond the Either/Or: Dual Attribution to the European Union and to the Member State for Breach of the ECHR. In: Malcolm D Evans M and Panos Koutrakos (eds.) The International Responsibility of the European Union. Hart Publishing, pp. 297–299; Baetens/Kreijen/Varga, above Chap. 2, fn. 73, p. 1238.

  103. 103.

    Maarten Den Heijer and André Nollkaemper (2014) A New Framework for Allocating International Responsibility: the EU Accession to the European Convention on Human Rights. SHARES Briefing Paper. http://www.sharesproject.nl/wp-content/uploads/2014/01/Binder11.pdf. Accessed 26 August 2018, p. 6.

  104. 104.

    ARIO Commentary, Article 64, paras. 2 et seq.

  105. 105.

    See below Sect. <InternalRef RefID="Sec20" >3.2.3</Internal Ref> for the rare ECT case law on the matter (though concerning intra-EU disputes).

  106. 106.

    See below Chap. 4.

  107. 107.

    See for details below Sect. 4.2.2.2.3.

  108. 108.

    See for details below Sect. 5.2.2.2.1.

  109. 109.

    See Article 26(8) ECT.

  110. 110.

    See Article 8.39 CETA, Article 3.18 EU-Singapore IIPA, Article 28(1) Section 3 Investment Chapter TTIP, Article 27(1), Section 3 Investment Chapter EU-Vietnam FTA.

  111. 111.

    See Jan Kleinheisterkamp (2013) Financial Responsibility in the European International Investment Policy. 15/2013 LSE Law, Society and Economy Working Papers, pp. 17–19; Sebastian/Sinclair, this chapter, fn. 80, pp. 280 et seq; Anne van Aaken (2010) Primary and Secondary Remedies in International Investment Law and National State Liability: A Functional and Comparative View. In: Stephan W Schill (ed.) International Law and Comparative Public Law. Oxford University Press, p. 734.

  112. 112.

    Article 35 ARS.

  113. 113.

    Article 35 ARIO.

  114. 114.

    See Factory at Chorzow, Merits, 1928, PCIJ Series A, No 17, p. 47.

  115. 115.

    Anne van Aaken, this chapter, fn. 111, pp. 730 et seq.

  116. 116.

    See ARS Commentary, Article 55, para. 3.

  117. 117.

    See Dimopoulos, above Chap. 2, fn. 39, pp. 269 et seq; Dimopoulos, above Chap. 2, fn. 112, p. 1676.

  118. 118.

    Under Member-State-only treaties there may equally be an incongruence between attribution of conduct (to the EU) and incumbency of obligations (on the Member State).

  119. 119.

    Eeckhout, above Chap. 2, fn. 80, p. 461, identifying that problem under mixed agreements under the premise that there would be a categorical apportionment of obligations along competence lines. Yet, under mixed IIPAs, this cannot happen since, as discussed, there is no apportionment of obligations between the EU and the Member States unless the treaty explicitly provides for a delimitation of obligations along competence lines. As both the EU and the Member States owes every obligation under a mixed IIPA, attribution simply functions to channel responsibility to the entity that the conduct is attributable to. In case a mixed IIPA contains an explicit delimitation, the delimitation would constitute arguably also constitute a lex specialis for international responsibility, making attribution of conduct irrelevant. See below Sect. <InternalRef RefID="Sec12" >3.2</Internal Ref>.

  120. 120.

    See Peter Ratz (2017) International and European Law Problems of Investment Arbitration involving the EU. Nomos, pp. 149–151; see also Dimopoulos, above Chap. 2, fn. 112, p. 1686; Karl, above Chap. 2, fn. 34, p. 432.

  121. 121.

    In such cases, Articles 6 and 7 ARIO are not applicable. See Dimopoulos, above Chap. 2, fn. 112, p. 1685; Dimopoulos, above Chap. 2, fn. 39, p. 264.

  122. 122.

    See Talmon, above Chap. 2, fn. 76, p. 410.

  123. 123.

    Happ/Bischoff, above Chap. 2, fn. 39, p. 173; Bischoff, above Chap. 2, fn. 61, p. 18; Krajewski, above Chap. 2, fn. 268, p. 118; Rosas, above Chap. 2, fn. 325, p. 151. Questioning the international responsibility of the EU under EU-only agreements for each and every Member State conduct, Karl, above Chap. 2, fn. 34, p. 432; Dimopoulos, above Chap. 2, fn. 112, p. 1685; Tomuschat, above Chap. 2, fn. 10, p. 180; Talmon, above Chap. 2, fn. 76, p. 410.

  124. 124.

    ARIO Commentary, Article 17, para. 3.

  125. 125.

    Eeckhout, , above Chap. 2, fn. 16, p. 325; Crawford, above Chap. 2, fn. 81, pp. 344, 428–429; Schütze, above Chap. 2, fn. 15, p. 197; Krajewski, above Chap. 2, fn. 268, p. 118; Hollis, above Chap. 2, fn. 82, p. 118; Karl, above Chap. 2, fn. 34, p. 432; Kuijper/Paasivirta, above Chap. 2, fn. 155, p. 36; Dimopoulos, above Chap. 2, fn. 112, pp. 1685–1686; Chittharanjan F Amerasinghe (2005) Principles of the Institutional Law of International Organizations, 2nd edn. Cambridge University Press, pp. 414–415, 440, 446; Brölmann (2007), above Chap. 2, fn. 313, p. 265; Schmalenbach, in Dörr/Schmalenbach, above Chap. 2, fn. 81, Article 26 VCLT, para. 55; Tomuschat, above Chap. 2, fn. 10, p. 179; ARIO Commentary, Article 40, para. 1. Advocating a residuary responsibility of Member States for breaches of obligations of international organizations, Moshe Hirsch (1995) The Responsibility of International Organizations Toward Third Parties: Some Basic Principles. Martinus Nijhoff Publishers, p. 155: ‘The injured party is required to present its claim first to the international organization, and then it would be entitled to proceed against the members only if the organization were to default in providing adequate remedy’.

  126. 126.

    See again above Sect. 2.3.2.

  127. 127.

    Article 62(1) ARIO reads: ‘A state member of an international organization is responsible for an internationally wrongful act of that organization (a) if it has accepted responsibility for that act towards the injured party; or (b) it has led the injured party to rely on its responsibility’. The provision does not require that the Member State must be bound by the international obligation of the international organisation to bear international responsibility for its breach. Here, it is the international organisation holding the international obligation, not the Member State. Otherwise there would be no internationally wrongful act of the organisation (cf. Article 4(b) ARIO). Cf. Jean d’Aspremont (2007) The abuse of the legal personality of international organizations and the responsibility of Member States. 4(1) IntlOrgLRev, p. 98.

  128. 128.

    ARIO Commentary, Article 62, para. 2; Crawford, above Chap. 2, fn. 81, p. 346; Ryngaert/Buchanan, above Chap. 2, fn. 322, pp. 136–138; Brölmann (2007), above Chap. 2, fn. 313, p. 264; Roe/Happold, above Chap. 2, fn. 39, p. 178.

  129. 129.

    With respect to the ‘International Tin Council’ and the ‘Westland Helicopters’ litigation see: ARIO Commentary, Article 62, paras. 3–4; Crawford, above Chap. 2, fn. 81, pp. 424–427 with references.

  130. 130.

    Crawford, above Chap. 2, fn. 81, p. 423.

  131. 131.

    Ibid.

  132. 132.

    Article 55 ARS reads: ‘These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law’.

  133. 133.

    ARS Commentary, Art. 55, para. 2; ARIO Commentary, Art. 64, paras. 1, 7.

  134. 134.

    ARS Commentary, Art. 55, para. 6; ARIO Commentary, Art. 64, para. 7; ILA Study Group Report (2012), Report of the International Law Association Study Group on the Responsibility of International Organizations (Sofia Conference). https://ila.vettoreweb.com/Storage/Download.aspx?DbStorageId=1446&StorageFileGuid=11415da7-ea1a-41b6-b407-aff3f8d211e5. Accessed 26 August 2018, pp. 40–41.

  135. 135.

    ARS Commentary, Art. 55, paras. 2–3, 5; ARIO Commentary, Art. 64, paras. 1–2.

  136. 136.

    Talmon, above Chap. 2, fn. 76, p. 411: States and international organisations are free to ‘agree on special conditions for the existence of an internationally wrongful act which will take precedence over the general principle’ enshrined in the ARIO and ARS.

  137. 137.

    See e.g. Articles 14–17, 58–62 ARIO and Articles 16–18 ARS.

  138. 138.

    See e.g. Articles 16, 60, 62 ARIO and Article 18 ARS.

  139. 139.

    Sebastian/Sinclair, this chapter, fn. 80, p. 275; Talmon, above Chap. 2, fn. 76, p. 411; Report of the International Law Association Study Group on the Responsibility of International Organizations, this chapter, fn. 134, pp. 40–41.

  140. 140.

    D’Aspremont, this chapter, fn. 26, p. 82; Kuijper/Paasivirta, above Chap. 2, fn. 155, p. 57.

  141. 141.

    ARIO Commentary, Article 64, paras. 2 et seq.

  142. 142.

    Article 55 ARS does not refer to the internal law of states.

  143. 143.

    Crawford, above Chap. 2, fn. 81, pp. 333, 355, 357; Messineo, this chapter, fn. 11, pp. 80–83.

  144. 144.

    Cf. Steinberger, above Chap. 2, fn. 7, pp. 859–861; André Nollkaemper and Dov Jacobs (2013) Shared Responsibility in International Law: A Conceptual Framework. 34(2) MJIntlL, pp. 422–423; Nollkaemper, above Chap. 2, fn. 80, pp. 314–315, 325–330.

  145. 145.

    Ibid.

  146. 146.

    Nollkaemper, above Chap. 2, fn. 80, pp. 314–315; Cremona, above Chap. 2, fn. 156, pp. 22, 25; Steinberger, above Chap. 2, fn. 7, pp. 859–861; Neframi, above Chap. 2, fn. 81, pp. 201–202; Talmon, above Chap. 2, fn. 76, pp. 416–417; Tomuschat, above Chap. 2, fn. 10, p. 185.

  147. 147.

    Article 6(2) Annex IX UNCLOS reads: ‘Any State Party may request an international organization or its member States which are States Parties for information as to who has responsibility in respect of any specific matter. The organization and the member States concerned shall provide this information. Failure to provide this information within a reasonable time or the provision of contradictory information shall result in joint and several liability [emphasis added]’.

  148. 148.

    Article 19(2) of the Agreement on the promotion, provision and use of Galileo and GPS satellite-based navigation systems and related applications between the United States of America, of the one part, and the European Community and its Member States, of the other part [2011] OJ L 348, p. 1, reads: ‘If it is unclear whether an obligation under this agreement is within the competence of either the European Community or its Member States, at the request of the United States the European Community and its Member States shall provide the necessary information. Failure to provide this information with all due expediency or the provision of contradictory information shall result in joint and several liability [emphasis added]’.

  149. 149.

    Article 4(6) Kyoto Protocol to the UN Framework Convention on Climate Change [2002] OJ L 130, p. 4, reads: ‘If Parties acting jointly do so in the framework of, and together with, a regional economic integration organization which is itself a Party to this Protocol, each member State of that regional economic integration organization individually, and together with the regional economic integration organization acting in accordance with Article 24, shall, in the event of failure to achieve the total combined level of emission reductions, be responsible for its level of emissions as notified in accordance with this Article [emphasis added]’.

  150. 150.

    Nollkaemper, above Chap. 2, fn. 80, pp. 325–327; Crawford, above Chap. 2, fn. 81, p. 344.

  151. 151.

    See in this respect Heliskoski, above Chap. 2, fn. 199, pp. 196–197; Hollis, above Chap. 2, fn. 82, pp. 120–121; James D Fry(2014) Attribution of Responsibility. In: André Nollkaemper and Ilias Plakokefalos (eds.) Principles of Shared Responsibility in International Law: An Appraisal of the State of the Art. Cambridge University Press, pp. 105–106, at p. 105: ‘No reference to attribution of conduct is made here. Neither is it likely that attribution of conduct is implicitly presumed, because what matters for responsibility is competence, rather than conduct. The inclusion of the word ‘competence’ in UNCLOS is essential. […] Therefore, it does not matter who actually committed the wrongful conduct’; The ARIO Commentary, Chapter II, para. 3, explicitly refers to Article 6(1) Annex IX UNCLOS as an example of a rule on attribution of responsibility and states that: ‘Attribution of conduct to the responsible party is not necessarily implied’. But see Talmon, above Chap. 2, fn. 76, pp. 411–412: ‘Article 6 seems to deal with allocation of responsibility rather than with attribution of responsibility. [...] Article 6 thus can only be a starting point or a fork in the road on the way to establishing the international responsibility of the EC or its member States. It does not absolve States or international organizations wanting to invoke the responsibility of the EC from the need to show that the conduct in question is attributable to it.’ Talmon sees Article 6 as a mere delimitation of obligations, leaving untouched the requirement of attribution of breaching conduct for international responsibility to arise. He does not see that the provision deals with international responsibility for breaching conduct.

  152. 152.

    Cortés Martín, above, this chapter, fn. 26, pp. 197–198.

  153. 153.

    Case No 7 concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific (Chile v European Union). https://www.itlos.org/en/cases/list-of-cases/case-no-7/. Accessed 26 August 2018.

  154. 154.

    Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC Advisory Opinion), Advisory Opinion of 2 April 2015, ITLOS.

  155. 155.

    Ibid, para. 168.

  156. 156.

    Ibid, para. 173.

  157. 157.

    Cf. Talmon, above Chap. 2, fn. 76, p. 411.

  158. 158.

    Ibid.

  159. 159.

    But see again Talmon, above Chap. 2, fn. 76, pp. 411–412, who argues that attribution of conduct is wholly untouched by Article 6(1) Annex IX UNCLOS and that in order to hold the EU responsible it is still required that the breaching conduct is attributable to the EU and not the Member States, and vice versa.

  160. 160.

    See above Chap. 2, fn. 70 or this chapter, fn. 110.

  161. 161.

    The REG emphasises budget neutrality as a guiding principle of the REG, to be reflected in the responsibility regimes under post-Lisbon EU IIPAs. See Recitals 5 and 9 REG; Explanatory Memorandum to the REG, pp. 2, 5, 7.

  162. 162.

    See below Sect. 4.2.2.1.3 for how the REG is rendered effective under post-Lisbon EU IIPAs.

  163. 163.

    Crawford, above Chap. 2, fn. 81, p. 344: ‘There may also be joint responsibility: a state as member of an international organization may be jointly responsible along with the organization (and other members) for fulfilling obligations under a mixed agreement between the organization and its member states on the one hand and non-member states on the other [emphasis added]’; Fry, this chapter, fn. 151, p 106: ‘Mixed agreements between the European Union and its member states also represent a typical example. Responsibility can be attributed without attribution of conduct to the same subject, because the European Union or member states can be held responsible for the conduct of the other [emphasis added]’; see Second Report on the Responsibility of International Organizations by Special Rapporteur Giorgio Gaja, ILC 56th session, UN Doc A/CN.4/541, 2 April 2004, para. 8: ‘However, joint, or joint and several, responsibility does not necessarily depend on dual attribution. One can take as an example the so-called mixed agreements, to which both the European Community (EC) and its member States are parties. In case of an infringement of a mixed agreement that does not distinguish between the respective obligations of the EC and its member States—either directly, or by referring to their respective competencies—responsibility would be joint towards the non-member State party to the agreement. […] In this case attribution of conduct to the EC or a member State does not appear to be relevant when deciding who is responsible. Even if it was ascertained that conduct was attributable only to one of the actors , they would all be jointly responsible [emphasis added]’; ARIO Commentary, Article 48, para. 1: ‘Another example [of joint responsibility next to Articles 14-18 ARIO and Articles 58-62 ARIO] is provided by so-called mixed agreements that are concluded by the European Union together with its member States, when such agreements do not provide for the apportionment of the responsibility between the Union and its member States’; Nollkaemper, above Chap. 2, fn. 80, p. 331: ‘One relatively uncontested example occurs when the EU and its Member States conclude, as one party , a treaty with another party. Any action by either the EU or a Member State then is attributed to the joint entity [emphasis added]’; Talmon, above Chap. 2, fn. 76, p. 408: ‘Their conduct need not be attributed to each other but i s attributed instead to the legal person consisting of the EC and its member States [emphasis added]’; Neframi, above Chap. 2, fn. 81, p. 201: ‘Indeed, the wrongful act, whether committed by the Community or by the Member States, is attributable to the Community group, which has assumed the whole breadth of obligations […]’; Kuijper/Paasivirta, above Chap. 2, fn. 1, pp. 187–188.

  164. 164.

    Ibid.

  165. 165.

    Cf. Nollkaemper, above Chap. 2, fn. 80, p. 331; Crawford, above Chap. 2, fn. 81, pp. 340 et seq; Certain Phosphate Lands in Nauru (Nauru v Australia), 1992 ICJ Reports 240 (Separate Opinion Judge Shahabuddeen), p. 284.

  166. 166.

    Talmon, above Chap. 2, fn. 76, p. 408.

  167. 167.

    Cf. above Sect. 2.3.1.2.3.2.2.

  168. 168.

    Cf. Nollkaemper, above Chap. 2, fn. 80, p. 325; Certain Phosphate Lands in Nauru (Nauru v Australia), 1992 ICJ Reports 326 (Separate Opinion of Judge Ago), p. 328.

  169. 169.

    See again above Sect. 2.3.1.1.7.

  170. 170.

    See below Chap. 4.

  171. 171.

    When the respondent is determined under the respondent determination mechanism under CETA, this study argues that the respondent is internationally responsible for the challenged conduct within the ‘EU-Member State responsibility window’. For the purposes of attribution and international responsibility this means that the respondent becomes the composite entity comprised of the EU and the Member State concerned. See for details below Sect. 4.3. However, this effect only comes into play after the determination. Before the initiation of the mechanism the EU and the Member States remain separate entities.

  172. 172.

    ILC, ‘Responsibility of International Organisations – Comments and Observations received from International Organisations’, Doc A/CN.4/545, 25 July 2004, pp. 26 et seq; see for a concise critique, Eeckhout, above Chap. 2, fn. 80, pp. 449–464.

  173. 173.

    Electrabel SA v The Republic of Hungary, ICSID Case No ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012, paras. 4.170, 5.10 and 5.20.

  174. 174.

    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, Brussels 7 July 2010, COM (2010) 343, p. 10.

  175. 175.

    Explanatory Memorandum to the REG, p. 4.

  176. 176.

    Ibid.

  177. 177.

    Ibid.

  178. 178.

    Baetens/Kreijen/Varga, above Chap. 2, fn. 73, p. 1242.

  179. 179.

    Explanatory Memorandum to the REG, pp. 3–5.

  180. 180.

    Explanatory Memorandum to the REG, p. 5.

  181. 181.

    Ibid.

  182. 182.

    Kleinheisterkamp, this chapter, fn. 111, p. 8: ‘Put differently, the Commission claims that, because of the exclusive competence for international investment policy, it must be the EU alone who decides on who has to assume the responsibility for the treatment that allegedly caused harm to a foreign investor’; see also Marín-Durán, above Chap. 2, fn. 270, p. 26.

  183. 183.

    See below Sect. 4.2.1.3.3.

  184. 184.

    See below Sect. 4.4.

  185. 185.

    See above Chap. 2, fn. 72.

  186. 186.

    Cf. Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1241–1242.

  187. 187.

    Ibid.

  188. 188.

    But see Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1241–1242.

  189. 189.

    See above Sect. 2.3.1.1.5.1.

  190. 190.

    But see Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1241–1242.

  191. 191.

    See Dimopoulos, above Chap. 2, fn. 112, p. 1691: ‘Since the exact determination of EU exclusive competence remains a highly contentious matter, which more than 5 years after the entry into force of the Lisbon Treaty has not yet been clarified, any competence-based allocation of responsibility should be avoided’.

  192. 192.

    See for conceptual critique of using the competence division between the EU and the Member States for determining international responsibility, Heliskoski, above Chap. 2, fn. 199, pp. 191–196, 207–209; Cannizzaro, this chapter, fn. 102, p. 307; Eeckhout, above Chap. 2, fn. 16, pp. 262–263; Eeckhout, above Chap. 2, fn. 80, p. 461; Piet Eeckhout (2015) Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue: Autonomy or Autarky? 38(4) FIntlLJ, pp. 982–985; Talmon, above Chap. 2, fn. 76, p. 409; Nollkaemper, above Chap. 2, fn. 80, pp. 332–333; Sarvarian, this chapter, fn. 26, pp. 90–92.

  193. 193.

    See Article 7 ARS and Article 8 ARIO attributing conduct to the state or an international organisation respectively despite an excess of authority (competence).

  194. 194.

    See Kuijper/Paasivirta, above Chap. 2, fn. 155, pp. 54 et seq; Kuijper, this chapter, fn. 78, pp. 75–77; Heliskoski, above Chap. 2, fn. 199, pp. 191–196; Hoffmeister, above Chap. 2, fn. 243, p. 745.

  195. 195.

    Compare Articles 3 ARIO et seq with Articles 28 ARIO et seq; and compare Articles 1 ARS et seq with Articles 28 ARS et seq.

  196. 196.

    See Article 26(8) ECT and Article 8.39 CETA, Article 3.18 EU-Singapore IIPA, Article 28(1) Section 3 Investment Chapter TTIP, Article 27(1) Section 3 Investment Chapter EU-Vietnam FTA.

  197. 197.

    Sarvarian, this chapter, fn. 26, p. 91.

  198. 198.

    Dimopoulos, above Chap. 2, fn. 112, p. 1676; Dimopoulos, above Chap. 2, fn. 39, pp. 269 et seq; Baetens/Kreijen/Varga, above Chap. 2, fn. 73, p. 1242; Sarvarian, this chapter, fn. 26, p. 90.

  199. 199.

    See Hollis, above Chap. 2, fn. 82, p. 111; Alina Kaczorowska-Ireland (2016) European Union Law, 4th edn. Routledge, pp. 432–433 Case C-239/03 Commission v France (Étang de Berre) [2004] ECR I-9325; AG Opinion Mischo in Case C-13/00 Commission v Ireland [2002] ECR I-2943, paras. 29–30.

  200. 200.

    Baetens/Kreijen/Varga, above Chap. 2, fn. 73, p. 1242.

  201. 201.

    Article 207(6) TFEU provides that the competences of the EU ‘in the field of the common commercial policy shall not affect the delimitation of competences between the Union and the Member States, and shall not lead to harmonisation of legislative or regulatory provisions of the Member States in so far as the Treaties exclude such harmonisation’.

  202. 202.

    Dimopoulos, above Chap. 2, fn. 112, p. 1676; Dimopoulos, above Chap. 2, fn. 39, pp. 269 et seq.

  203. 203.

    Tietje/Sipiorski/Töpfer, above Chap. 2, fn. 69, pp. 16–18.

  204. 204.

    See Article 26(8) ECT and Article 8.39 CETA, Article 3.18 EU-Singapore IIPA, Article 28(1) Section 3 Investment Chapter TTIP, Article 27(1) Section 3 Investment Chapter EU-Vietnam FTA.

  205. 205.

    Dimopoulos, above Chap. 2, fn. 112, pp. 1700–1702. The risk of undermining the autonomy of EU law by vesting Arbitral Tribunals with the power to assess and decide upon the division of competences between the EU and the Member States is a driving force for the proceduralisation of international responsibility that deprives the Arbitral Tribunal from assessing and deciding that question. See for details below Sect. 4.1.2.

  206. 206.

    See again Recital 3 REG; Explanatory Memorandum to the REG, p. 4.

  207. 207.

    Opinion 1/91 Economic Area Agreement I [1991] ECR I-6079, para. 33: ‘The expression ‘Contracting Parties’ is defined in Article 2(c) of the agreement. As far as the Community and its Member States are concerned, it covers the Community and the Member States, or the Community, or the Member States, depending on the case. Which of the three possibilities is to be chosen is to be deduced in each case from the relevant provisions of the agreement and from the respective competences of the Community and the Member States as they follow from the EEC Treaty and the ECSC Treaty’.

  208. 208.

    Explanatory Memorandum to the REG, pp. 4–5.

  209. 209.

    Explanatory Memorandum to the REG, p. 5.

  210. 210.

    But see Ratz, this chapter, fn. 120, p. 111.

  211. 211.

    See this chapter, fn. 151 et seq and accompanying text.

  212. 212.

    See above Sect. 2.3.1.2.3.2.

  213. 213.

    See Roe/Happold, above Chap. 2, fn. 39, p. 184; for details see above Sect. 2.3.1.2.3.1.

  214. 214.

    See Baetens/Kreijen/Varga, above Chap. 2, fn. 73, pp. 1234–1236.

  215. 215.

    See Marín-Durán, above Chap. 2, fn. 270, pp. 21–26, and at p. 2: ‘The approach to EU/MS international responsibility we have witnessed in the WTO dispute settlement system has not just been determined by the EU internal rules –ie, a pure ‘competence model’, whereby the exclusive (external) competence of the EU for virtually all WTO matters will implicate its exclusive responsibility in all instances’. See also above Sect. <InternalRef RefID="Sec6" >3.1.2.2.1</Internal Ref> for an appraisal of WTO case law.

  216. 216.

    But see Ratz, this chapter, fn. 120, p. 111.

  217. 217.

    See D’Aspremont, this chapter, fn. 26, pp. 80–82; Ahlborn, this chapter, fn. 26, pp. 433–443, 451–452; Hernández, above Chap. 2, fn. 10, pp. 652–654.

  218. 218.

    See Ahlborn, this chapter, fn. 26, pp. 438–440.

  219. 219.

    See Articles 2(b)(c), 6(2), 32(1), 40 ARIO.

  220. 220.

    E contrario Articles 10(2), 32(2) ARIO.

  221. 221.

    See above Chap. 2, fn. 112.

  222. 222.

    D’Aspremont, this chapter, fn. 26, p. 81; Ahlborn, this chapter, fn. 26, p. 452.

  223. 223.

    Statement of Roberto Ago in United Nations (1969) Yearbook of the International Law Commission 1968, Vol I – Summary Records of the 20th Session, 27 May - 2 Aug 1968, p. 31, para. 24.

  224. 224.

    D’Aspremont, this chapter, fn. 26, p. 81.

  225. 225.

    ARS Commentary, Chapter II, para. 7.

  226. 226.

    Eeckhout, above Chap. 2, fn. 16, p. 264.

  227. 227.

    Nollkaemper, above Chap. 2, fn. 80, p. 321.

  228. 228.

    Ahlborn, this chapter, fn. 26, pp. 441–443.

  229. 229.

    To clarify, the lex specialis scenario concerns certain cases where Member States implement EU law. Where Member States do not implement EU law or implement EU law in a way that does not fall under the lex specialis scenario, their breaching conduct is attributable to them, triggering their international responsibility under the ECT pursuant to the lex generalis rule of Article 4 ARS. Where EU organs breach the ECT their conduct is attributable to the EU pursuant to the lex generalis rule of Article 6 ARIO, triggering the EU’s international responsibility under the ECT.

    As discussed above in Sect. <InternalRef RefID="Sec13" >3.2.1</Internal Ref>, the ECT enshrines no lex specialis rule of joint responsibility, as discussed above in Sect. 2.3.1.2.3.1 the ECT does neither effectively elevate the division of competences between the EU and the Member States into the determinant for international responsibility. And as discussed above in Sect. <InternalRef RefID="Sec16" >3.2.2</Internal Ref>, for many reasons it is unlikely that Arbitral Tribunals would recur to the partition of competences as derives from the EU Treaties for determining international responsibility.

  230. 230.

    Article 1(3) ECT means regulatory ‘competences’ and not treaty-making ‘competences’. In this regard, see again above Sect. 2.3.1.2.3.1.

  231. 231.

    Electrabel SA v The Republic of Hungary, ICSID Case No ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012.

  232. 232.

    AES Summit Generation Ltd and Tisza Eromu Kft v The Republic of Hungary, Case No ARB/07/22, Award, 23 September 2010.

  233. 233.

    See for an analysis of the case, Andreas Kulick (2014) Case Report: Electrabel S.A. v. The Republic of Hungary. 15(1–2) JWIT, pp. 273–284; see also Inès El Hayek and Anne Gilles (2014) The Multifaceted Settlement of International Investments Disputes: Thoughts about the Variety of Instruments Claiming Their Applicability to the Investment Dispute. 29(3) ICSIDRev, p. 586.

  234. 234.

    Electrabel SA v The Republic of Hungary, ICSID Case No ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012, para. 4.171: ‘However, this is manifestly not what this case is all about: the European Union is not a named party to this arbitration; the Claimant here makes no complaint against the European Union or the European Commission; it does not impugn the legal validity of the Commission’s Final Decision; and its claims are not made under EU law. The Claimant’s claims under the ECT relate only to certain measures taken by the Respondent, some resulting from the Final Decision under EU law and some with no link with the Commission or EU law [emphasis added]’; and see paras. 5.10, 5.33–5.36.

  235. 235.

    Ibid, para. 6.72.

  236. 236.

    Ibid, para. 6.73.

  237. 237.

    Ibid, para. 6.74.

  238. 238.

    See above Sect. <InternalRef RefID="Sec4" >3.1.2.1</Internal Ref>.

  239. 239.

    Cf. Kulick, this chapter, fn. 233, pp. 282–283; El Hayek/Gilles, this chapter, fn. 233, p. 586.

  240. 240.

    Electrabel SA v The Republic of Hungary, ICSID Case No ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012, para. 6.76.

  241. 241.

    Ibid, paras. 4.38, 4.52, 4.168–4.169, 6.76–6.77, 6.91–6.92; see also the merits award in Electrabel SA v Republic of Hungary, ICSID Case No ARB/07/19, Award, 25 November 2015, para. 113: ‘Although [the Commission decision and EU law] form important background materials to the decisions made by Hungary as regards its scheme for net stranded costs in regard to Dunamenti, those decisions were made within a broad discretion by Hungary , alone, consistent with EU law at that time [emphasis added]’.

  242. 242.

    AES Summit Generation Ltd and Tisza Eromu Kft v The Republic of Hungary, Case No ARB/07/22, Award, 23 September 2010, para. 10.3.16.

  243. 243.

    See below Sect. 5.2.2.2.

  244. 244.

    Dimopoulos, above Chap. 2, fn. 112, pp. 1674, 1677, 1696 et seq; Stephan W Schill (2015) Editorial: Opinion 2/13 – The End for Dispute Settlement in EU Trade and Investment Agreements? 16(3) JWIT, pp. 386–387. See also below Sect. 4.1.2 for details.

  245. 245.

    See above Sect. <InternalRef RefID="Sec10" >3.1.3</Internal Ref>.

  246. 246.

    Karl, above Chap. 2, fn. 34, p. 432.

  247. 247.

    Krajewski, above Chap. 2, fn. 268, p. 118.

  248. 248.

    See Dimopoulos, above Chap. 2, fn. 112, p. 1686.

  249. 249.

    Cf. Talmon, above Chap. 2, fn. 76, p. 417.

  250. 250.

    Karl, above Chap. 2, fn. 34, p. 432.

  251. 251.

    The provision reads: ‘Each Member is fully responsible under GATT 1994 for the observance of all provisions of GATT 1994, and shall take such reasonable measures as may be available to it to ensure such observance by regional and local governments and authorities within its territory’.

  252. 252.

    The rule reads: ‘Each Contracting Party is fully responsible under this Treaty for the observance of all provisions of the Treaty, and shall take such reasonable measures as may be available to it to ensure such observance by regional and local governments and authorities within its Area’. See also: Roe/Happold, above Chap. 2, fn. 39, p. 166; Thomas W Wälde and Patricia K Wouters (1996) State Responsibility in a Liberalised World Economy: “State, Privileged and Subnational Authorities” under the 1994 Energy Charter Treaty: An Analysis of Articles 22 and 23. 27 NYIntlL, pp. 162–164; Monique Sasson (2010) Substantive Law in Investment Treaty Arbitration: The Unsettled Relationship between International Law and Municipal Law. Kluwer Law International, pp. 2–3.

  253. 253.

    The provision reads: ‘The Parties shall ensure that all necessary measures are taken in order to give effect to the provisions of this Agreement, including their observance, except as otherwise provided in this Agreement, by state and provincial governments’.

  254. 254.

    Dimopoulos, above Chap. 2, fn. 112, pp. 1684–1687.

  255. 255.

    E.g. Bischoff, above Chap. 2, fn. 61, p. 18: ’It seems pertinent to treat the EU like a federal state (and the Member States like its organs) in [the case of infringements of EU-only IIPAs]’.

  256. 256.

    See Schütze, above Chap. 2, fn. 15, p. 175.

  257. 257.

    Crawford, above Chap. 2, fn. 81, pp. 123–124; Crawford, this chapter, fn. 92, pp. 451; Shaw, above Chap. 2, fn. 8, p. 175; Chittharanjan F Amerasinghe (2008) Diplomatic Protection. Oxford University Press, pp. 238–241; Luzius Wildhaber (1971) Treaty-Making Power and Constitution: An International and Comparative Study. Helbing & Lichtenhahn, pp. 266–267; Brian R Opeskin (1996) Federal States in the International Legal Order. 43(3) NIntlLRev, p. 360; Djamchid Momtaz (2010) Attribution of Conduct to the State: State Organs and Entities Empowered to Exercise Elements of Governmental Authority. In: James Crawford, Alain Pellet, Simon Olleson and Kate Parlett (eds.) The Law of International Responsibility. Oxford University Press, pp. 241–243; Kaj Hobér (2008) State Responsibility and Investment Arbitration. 25(5) JIntlA, pp. 571–575; Pierre-Marie Dupuy (2006) Les émanations engagent-elles la responsabilité des Etats? Etude de droit international des investissements. 2006/07 EUI Working Paper LAW. http://cadmus.eui.eu/bitstream/handle/1814/4294/LAW%202006-07.pdf?sequence=1&isAllowed=y. Accessed 26 August 2018.

  258. 258.

    See ARS Commentary, Article 4, para. 9, fn. 122 et seq.

  259. 259.

    LaGrand (Germany v United States of America), Provisional Measures, 1999 ICJ Reports 9, at p. 16, para. 28; see also LaGrand (Germany v United States of America), Judgment, 2001 ICJ Reports 466, at p. 495, para. 81.

  260. 260.

    WTO Panel Report, Case WT/DS18/RW Australia-Salmon, para. 7.12.

  261. 261.

    Metalclad Corporation v United States of Mexico, ICSID Case No ARB/01/7, Award, 25 May 2004, para. 73; SD Myers Inc v Canada, UNCITRAL Partial Award, 13 November 2000, paras. 237 et seq; Compañía de Aguas del Aconquija SA and Vivendi Universal SA v Argentine Republic, ICSID Case No ARB/97/3, Award, 21 November 2000, para. 49; Loewen Group Inc and Raymond L Loewen v United States of America, ICSID Case No ARB(AF)/98/3, Award, 26 June 2003, para. 52; Glamis Gold Ltd v The United States of America, UNCITRAL, Award, 8 June 2009; Methanex Corporation v United States of America, UNCITRAL, Final Award of the Tribunal on Jurisdiction and Merits, 3 August 2005; Mondev International Ltd v United States of America, ICSID Case No ARB(AF)/99/2, Award, 11 October 2002, para. 67; Enron Corporation and Ponderosa Assets LP v Argentine Republic, ICSID Case No ARB/01/3, Decision on Jurisdiction, 14 January 2004, para. 32; Tokios Tokelés v Ukraine, ICSID Case No ARB/02/18, Decision on Jurisdiction, 29 April 2004, para. 102.

  262. 262.

    Case C-302/97 Konle [1999] ECR I-3099, para. 62; Case 69/81 Commission v Belgium [1982] ECR 153, para. 5; Case C-323/96 Commission v Belgium [1998] ECR I-5063, paras. 40–42; Case C-326/97 Commission v Belgium [1998] ECR I-6107, paras. 6–7: ‘A Member State may not plead provisions, practices or circumstances in its internal legal system to justify failure to comply with obligations under Community [law]’.

  263. 263.

    Schmalenbach in Dörr/Schmalenbach, above Chap. 2, fn. 81, Article 27 VCLT, paras. 1, 24.

  264. 264.

    Schmalenbach in Dörr/Schmalenbach, above Chap. 2, fn. 81, Article 26 VCLT, para. 22; Villiger, above Chap. 2, fn. 118, Article 27 VCLT, paras. 5–6; Opeskin, this chapter, fn. 257, p. 360.

  265. 265.

    ARS Commentary, Article 4, para. 9; LaGrand (Germany v United States of America), Provisional Measures, 1999 ICJ Reports 9, at p. 16, para. 28; see also LaGrand (Germany v United States of America), Judgment, 2001 ICJ Reports 466, at p. 495, para. 81.

  266. 266.

    For details see Opeskin, this chapter, fn. 257, pp. 367–379.

  267. 267.

    ARS Commentary, Article 4, paras. 6, 9–10.

  268. 268.

    Under Article 7 Draft ARS, adopted by the ILC Commission on first reading in January 1997: ‘The conduct of a territorial governmental entity within a State shall also be considered as an act of that State under international law, provided that organ was acting in that capacity in the case in question [emphasis added]’. Under Article 5 Draft ARS organs of constituent subdivisions were not explicitly mentioned. Hence under this 1997 version of the ARS, organs of constituent subdivisions were not automatically considered state organs. The exercise of governmental authority was an additional requirement.

  269. 269.

    See Amerasinghe, this chapter, fn. 257, p. 241.

  270. 270.

    Ibid, p. 230.

  271. 271.

    See Schütze, above Chap. 2, fn. 15, p. 175; Opeskin, this chapter, fn. 257, pp. 379–384; Wildhaber, this chapter, fn. 257, pp. 268–269.

  272. 272.

    The provision reads: ‘The Organization is based on the principle of the sovereign equality of all its Members’.

  273. 273.

    ARS Commentary, Chapter II, para. 7.

  274. 274.

    Cf. ARS Commentary, Article 4, para. 10; Hernández, above Chap. 2, fn. 10, p. 659.

  275. 275.

    Christian Tomuschat (2013) Attribution and International responsibility: Direction and Control. In: Malcolm D Evans and Panos Koutrakos (eds.) The International Responsibility of the European Union. Hart Publishing, p. 11.

  276. 276.

    Ibid, pp. 11–12.

  277. 277.

    BVerfG, 2 BvL 52/71, 29 May 1974, in BVerfGE 37, p. 278.

  278. 278.

    Silja Vöneky (2008) Analogy in International Law. In: The Max Planck Encyclopedia of Public International Law. http://opil.ouplaw.com/abstract/10.1093/law:epil/9780199231690/law-9780199231690-e1375?rskey=Fyw6EN&result=1&prd=EPIL. Accessed 26 August 2018, para. 15.

  279. 279.

    See Christiane Ahlborn (2012) The Use of Analogies in Drafting the Articles on the Responsibility of International Organizations – An Appraisal of the ‘Copy-Paste Approach’. 9(1) IntlOrgLRev, pp. 53–66; Chittharanjan F Amerasinghe (2013) An Assessment of the ILC Articles on the Responsibility of International Organizations. In: Maurizio Ragazzi (ed.) Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie. Martinus Nijhoff Publishers, p. 73.

  280. 280.

    Vöneky, this chapter, fn. 278, para. 16.

  281. 281.

    Ibid, para. 17.

  282. 282.

    See Kuijper/Paasivirta, above Chap. 2, fn. 155, p. 39; Magdalena Ličková (2008) European Exceptionalism in International Law. 19(3) EJIntlL, pp. 463–466.

  283. 283.

    A strict joint liability approach that does not require attribution of conduct would require an express provision in the EU IIPA, which can be excluded due to the budget-intensive implications of arbitral awards and settlement arising out of breaches of EU IIPAs.

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Stegmann, P.T. (2019). International Responsibility of the EU and the Member States for Breaches of EU IIPAs Under Traditional Rules. In: Responsibility of the EU and the Member States under EU International Investment Protection Agreements. European Yearbook of International Economic Law(), vol 6. Springer, Cham. https://doi.org/10.1007/978-3-030-04366-7_3

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