File #2706: "2019_Book_ResponsibilityOfTheEUAndTheMem.pdf"
Testo
1|Preface|6
1|Contents|7
1|About the Author|14
1|Abbreviations|15
1|Chapter 1: Introduction|18
2|1.1 Setting the Scene: Responsibility of the EU and the Member States Under EU IIPAs|18
3|1.1.1 The Concept of IIPAs and ISDS: Abridged|19
3|1.1.2 The Emergence of EU IIPAs|19
3|1.1.3 With Power Comes Responsibility|21
3|1.1.4 The Dawn of a New Responsibility Regime|22
2|1.2 Aim and Structure of This Study|25
1|Chapter 2: International Obligations of the EU and the Member States Under EU IIPAs|28
2|2.1 Capacity to Conclude IIPAs: The EU and the Member States as Subjects of International Law|29
2|2.2 Competence to Conclude IIPAs: The EU’s and the Member States’ Treaty-Making Competence in the Field of Foreign Investment|31
3|2.2.1 The Link Between Treaty-Making Competences Under EU Law and the Participation of the EU and the Member States in the Conclusion of a Treaty|32
3|2.2.2 The Division of Competences Between the EU and the Member States with Respect to IIPAs|34
4|2.2.2.1 Treaty-Making Competences Regarding Foreign Investment Before Lisbon: Member State BITs and the ECT as a Treaty of ‘Shared Mixity’|35
4|2.2.2.2 Treaty-Making Competence Regarding Foreign Investment After Lisbon: EU-Only or ‘Shared Mixity’ as the Crossroads for Post-Lisbon IIPAs|37
2|2.3 International Obligations of the EU and the Member States Under EU IIPAs|43
3|2.3.1 Apportionment of Obligations Between the EU and the Member States Under Mixed IIPAs Along Competence Lines|43
4|2.3.1.1 Apportionment of Obligations Along Division of Competences Under Mixed Agreements Devoid of Contractual Delimitations|45
5|2.3.1.1.1 ECJ Jurisprudence on Apportionment of Obligations Under Mixed Agreements Devoid of Contractual Delimitations|46
5|2.3.1.1.2 No Synchronisation of the EU’s and the Member States’ International Legal Personality with Their Treaty-Making Competences|47
5|2.3.1.1.3 A Treaty Party’s Consent to Be Bound by a Treaty Is Generally Comprehensive and All-Encompassing|49
5|2.3.1.1.4 The General Irrelevance of ‘Internal Law’ Under International Law|50
5|2.3.1.1.5 The Exceptional Relevance of ‘Internal Law’ Pursuant to Article 46 VCLT/VCLT-IO|53
6|2.3.1.1.5.1 The ECT and the Application of Article 46 VCLT-IO|56
6|2.3.1.1.5.2 Post-Lisbon Mixed IIPAs and the Application of Article 46 VCLT|57
5|2.3.1.1.6 Result: No Apportionment of Obligations Between EU and Member States Along Competence Lines Under Mixed IIPAs That Are Devoid of Delimitations|61
5|2.3.1.1.7 Joint or Several Assumption of International Obligations Under Mixed IIPAs Devoid of Contractual Delimitations?|61
4|2.3.1.2 Apportionment of Obligations Under Mixed IIPAs Along Competence Lines as Per Contractual Delimitations|65
5|2.3.1.2.1 The Various Contractual Delimitation Tools That Link Obligations Under a Mixed Agreements to the Division of Competences|66
6|2.3.1.2.1.1 The ‘Carving Up’ of the Mixed Agreement|67
6|2.3.1.2.1.2 Extroverted ‘Competence Clauses’ Referring to the Competences Partition in the EU Treaties|67
6|2.3.1.2.1.3 Introverted ‘Competence Clauses’ Referring to ‘Declarations of Competence’|68
5|2.3.1.2.2 International Law Requires Delimitations to Be Clear and Specific in Order to Be Effective|72
5|2.3.1.2.3 Contractual Delimitations of Obligations Under the ECT and Post-Lisbon Mixed IIPAs|74
6|2.3.1.2.3.1 No Delimitation of Obligations Under the ECT Along Competence Lines|74
6|2.3.1.2.3.2 Should There Be Contractual Delimitations Along Competence Lines Under Post-Lisbon Mixed IIPAs?|79
7|2.3.1.2.3.2.1 No General Parallelism Between (External) Treaty-Making and (Internal) Implementing Competences of the EU and the Member States Regarding Mixed IIPAs|80
7|2.3.1.2.3.2.2 The Implementation of IIPAs Predominantly Relies on Negative Obligations to Not Act in a Certain Way|82
7|2.3.1.2.3.2.3 The Abstract Protection Standards Under IIPAs Can Be Breached by the Exercise of Any Regulatory Competence|84
7|2.3.1.2.3.2.4 Appraisal and Result: The Implementation of Mixed IIPAs Cannot Be Properly Translated into an Ex Ante Delimitation of Obligations Along Competence Lines|86
3|2.3.2 International Obligations Flowing from EU-Only IIPAs|88
4|2.3.2.1 Member States Do Not Assume International Obligations Under EU-Only IIPAs Under the Law of Treaties|89
4|2.3.2.2 Member States Do Not Assume International Obligations Under EU-Only IIPAs by Way of Article 216(2) TFEU|91
2|2.4 Conclusions Chapter 2: Obligations Under Mixed IIPAs Do Not Run Along Competence Lines|93
1|Chapter 3: International Responsibility of the EU and the Member States for Breaches of EU IIPAs Under Traditional Rules|95
2|3.1 International Responsibility for Breaches of EU IIPAs Under the Lex Generalis of the ILC Articles and International Case Law|96
3|3.1.1 The ‘Organic’ Model of Attribution of Conduct Under the ARIO and ARS|99
3|3.1.2 Capturing the Decentralised Implementation of EU Law by the Member States Under the Lex Generalis of the ARIO and International Case Law|100
4|3.1.2.1 The ARIO’s (Non-)Recognition of the Decentralised Implementation of EU Law by Member States|102
4|3.1.2.2 (Incoherent) International Case Law Regarding the Decentralised Implementation of EU Law by the Member States|107
5|3.1.2.2.1 WTO Case Law: International Responsibility of the EU for Member State Conduct Implementing EU Law|107
5|3.1.2.2.2 ECHR Case Law: International Responsibility of the Member States for Member State Conduct Implementing EU Law|111
4|3.1.2.3 Result: No Uniformity Under International Case Law and the ARIO|114
4|3.1.2.4 The WTO Approach Is Not Transferable to IIPAs|115
3|3.1.3 Where Incumbency of Obligations and Attribution Go Astray: The Risk of Accountability Gaps Under EU-Only IIPAs Under the ILC Articles|116
3|3.1.4 Conclusions on International Responsibility for Breaches of EU IIPAs Under the Lex Generalis of the ARS and ARIO|119
2|3.2 International Responsibility for Breaches of EU IIPAs Under Leges Speciales|120
3|3.2.1 Joint (and Several) Responsibility of EU and Member States Under Mixed IIPAs as Lex Specialis|122
4|3.2.1.1 Joint Responsibility as Expressly Stipulated in a Mixed Agreement|123
4|3.2.1.2 Joint Responsibility as the Default Rule Under a Mixed Agreement|126
3|3.2.2 The Division of Competences Between the EU and the Member States Under the EU Treaties as Lex Specialis|129
4|3.2.2.1 The Division of Treaty-Making Competences as the Criterion for International Responsibility|131
4|3.2.2.2 The Division of Competences as Derives from the EU Treaties|135
4|3.2.2.3 Conclusions on the Competence-Based Approach as Lex Specialis|138
3|3.2.3 The ‘What-Is-Required-by-EU-Law’-Approach as Lex Specialis Under the ECT|138
4|3.2.3.1 Electrabel v Hungary|140
4|3.2.3.2 AES Summit v Hungary|142
4|3.2.3.3 Conclusions on the ECT-Approach|143
3|3.2.4 A Federal State Analogy as Lex Specialis Under EU-Only IIPAs|144
4|3.2.4.1 International Responsibility of Federal States|146
4|3.2.4.2 Applying a Federal State Analogy to the EU and the Member States Under EU-Only IIPAs|149
3|3.2.5 Summary: The Various Leges Speciales Under EU IIPAs|152
2|3.3 Conclusions Chapter 3: The Traditional Rules of International Responsibility Are Not Designed to Capture the Inner Workings of the EU and the Member States|153
1|Chapter 4: The Proceduralisation and Internalisation of International Responsibility Under Post-Lisbon Mixed IIPAs|155
2|4.1 The Rationale and Motives for a Proceduralisation of International Responsibility|157
3|4.1.1 Guaranteeing Legal Certainty|157
3|4.1.2 Protecting the Autonomy of EU Law|160
2|4.2 The Form of Proceduralisation Under Post-Lisbon Mixed IIPAs|166
3|4.2.1 The Functioning of the Respondent Determination from the Perspective of the Mixed IIPA|166
4|4.2.1.1 The Procedure for Determining the Respondent Under Post-Lisbon Mixed IIPAs|167
5|4.2.1.1.1 The Regular Procedure|167
5|4.2.1.1.2 The Default Procedure|169
4|4.2.1.2 A Single-Respondent Model|171
4|4.2.1.3 The Mandatory Nature of the Respondent Determination Mechanism|172
5|4.2.1.3.1 The Mandatory Activation of the Respondent Determination Mechanism|172
5|4.2.1.3.2 The Mandatory Outcome of the Respondent Determination Mechanism|175
5|4.2.1.3.3 Result: The Mandatory Mechanism Under Post-Lisbon Mixed IIPAs Versus the Voluntary Mechanism Under the ECT|178
3|4.2.2 The Functioning of the Respondent Determination from the Perspective of the REG|179
4|4.2.2.1 Applicability of the REG|179
5|4.2.2.1.1 The Hybrid Subject Matter of the REG|180
5|4.2.2.1.2 The REG Is Not Applicable per se Under EU IIPAs|182
5|4.2.2.1.3 Different Ways to Render Effective the External Aspects of the REG Under Post-Lisbon EU IIPAs|183
4|4.2.2.2 The Respondent Determination Under the REG|184
5|4.2.2.2.1 The Reasons Presented by the Commission for Adopting a Single-Respondent Model Under the REG as Opposed to a Co-Respondent Model|184
5|4.2.2.2.2 Interests of the Member States and the EU to Act as Respondent|185
5|4.2.2.2.3 The Criteria Under the REG for Determining Respondent Status|186
6|4.2.2.2.3.1 The Principle: Respondent Is Who Afforded the Treatment|186
6|4.2.2.2.3.2 The First Exception: Member State Cedes Respondent Status to the EU|187
6|4.2.2.2.3.3 The Two Exceptions Under Article 9(2)(a) and (b) REG: Definition Issues|188
6|4.2.2.2.3.4 The Test Under Article 9(2)(a) REG, Accountability Gaps Under the REG and Possible Remedies|190
6|4.2.2.2.3.5 The Exception of Article 9(3) REG: Parallel WTO Proceedings|193
5|4.2.2.2.4 The Commission’s Decision on Respondent Status and Accountability Gaps|194
5|4.2.2.2.5 Member States and Investors Can Challenge the Commission Decision on Respondent Status Before the CJEU Pursuant to Article 263 TFEU|197
5|4.2.2.2.6 The Provisions on Respondent Status Under the REG Do Not Correspond to the Rules of International Responsibility|199
5|4.2.2.2.7 When the EU Defends Member State Treatment: The Importance of the Duty of Cooperation|201
4|4.2.2.3 Settlement Rights and Duties Under the REG|203
4|4.2.2.4 Payment Obligations Vis-à-Vis the Investor Under the REG|206
2|4.3 The Constitutive Effect of the Respondent Determination Under Post-Lisbon Mixed IIPAs on the International Responsibility of the Determined Respondent|206
3|4.3.1 The Precondition to a Constitutive Effect of the Respondent Determination: ‘Respondent’ or Mere ‘Representative’?|208
3|4.3.2 The Scope of the Constitutive Effect: The ‘EU-Member State Responsibility Window’|210
3|4.3.3 The Interpretation of the Respondent Determination Mechanism Under Post-Lisbon Mixed IIPAs with Respect to a Constitutive Effect|211
4|4.3.3.1 Textual Interpretation of Article 8.21(6)(7) CETA|214
5|4.3.3.1.1 Article 8.21(6)(7) CETA and the Ground of the Correct Application of the REG by the Commission|216
5|4.3.3.1.2 Article 8.21(6)(7) CETA and the Ground That the Respondent Lacks International Responsibility for the Conduct Impugned by the Investor|218
6|4.3.3.1.2.1 Article 8.21(6)(7) CETA Bars the Respondent from Invoking and the Tribunal from Assessing at the Merits Stage That It Is Not Internationally Responsible for the Challenged Conduct|219
6|4.3.3.1.2.2 Article 8.21(6)(7) CETA Bars the Respondent from Invoking and the Tribunal from Assessing at the Jurisdictional and Admissibility Stage That It Is Not Internationally Responsible for the Challenged Conduct|219
6|4.3.3.1.2.3 The ‘Monetary Gold’ Principle as a Bar to a Tribunal’s Jurisdiction|225
5|4.3.3.1.3 Result: The Textual Interpretation of Article 8.21(6)(7) CETA Underscores the Constitutive Effect of the Respondent Determination on International Responsibility|228
4|4.3.3.2 Possible Accountability Gaps and a Denial of Justice|229
4|4.3.3.3 Protection of the Autonomy of EU Law|232
4|4.3.3.4 Result on Interpretation: The Respondent Determination Mechanism Under CETA Has a Constitutive Effect on International Responsibility|232
3|4.3.4 Capturing the Constitutive Effect Under the ILC Articles|233
4|4.3.4.1 The Respondent Determination as Adoption and Acknowledgment of Conduct Under Article 11 ARS and Article 9 ARIO|233
4|4.3.4.2 The Respondent Determination Mechanism as a Lex Specialis of International Responsibility Under Article 55 ARS and 64 ARIO|235
2|4.4 Excursus: Proceduralisation of International Responsibility Under EU-Only IIPAs|237
3|4.4.1 No Consent to Arbitration of Member States Under EU-Only IIPAs per se|239
3|4.4.2 No International Responsibility of Member States Under EU-Only IIPAs per se|240
3|4.4.3 Article 35 VCLT and Member State International Responsibility|241
3|4.4.4 Article 62 ARIO and Member State International Responsibility|242
3|4.4.5 Drafting Proposals for EU-Only IIPAs that Enable Member State Participation|245
3|4.4.6 Result: Member States Are Free to Enter the Fray Under EU-Only IIPAs|246
2|4.5 Conclusions Chapter 4: A New Responsibility Regime Under Post-Lisbon Mixed IIPAs|247
1|Chapter 5: The Internal Allocation of Financial Responsibility Under the REG|251
2|5.1 The Case of Germany: Internal Allocation of Financial Responsibility Between the Bund and the Länder|254
3|5.1.1 Applicability of Article 104a(6) GG and the LastG|256
3|5.1.2 The Internal Reimbursement Claim of the Bund Against the Länder|258
3|5.1.3 The Allocation Criteria: Financial Responsibility Lies with the Originator of the Breach|258
3|5.1.4 The Apportionment of a Financial Burden Into a Bund and a Länder Share|261
3|5.1.5 Summary on Germany’s Allocation System|267
2|5.2 Internal Allocation of Financial Responsibility Between the EU and the Member States Under the REG|267
3|5.2.1 The Limited Value of Drawing Analogies from the EU State Responsibility Regime for Interpreting and Complementing the Allocation Criteria Under the REG|269
3|5.2.2 The Allocation Criteria Pursuant to Article 3 REG|272
4|5.2.2.1 Article 3(1)(a) and (b) REG: Financial Responsibility Lies with the Originator of the Treatment That Led to the Financial Burden|273
4|5.2.2.2 Financial Responsibility of the EU Pursuant to Article 3(1)(c) REG for Member State Treatment ‘Required by Union Law’|273
5|5.2.2.2.1 The Hypothetical Causation-Test Under Article 3(1)(c) in Conjunction with Article 2(l) REG|274
5|5.2.2.2.2 Avoiding a Breach of the EU IIPA Without Disregarding a EU Law Obligation|277
5|5.2.2.2.3 Member States ‘Incorrectly’ Implementing EU Law Obligations and Article 3(1)(c) REG|278
5|5.2.2.2.4 The Hypothetical Causation-Test Under the REG and the Proportionality Test Under EU Law|279
5|5.2.2.2.5 Comparison of Article 3(1)(c) REG with the EU State Responsibility Regime|280
5|5.2.2.2.6 A Single Member State Treatment Can ‘Partly’ Fall Under Article 3(1)(c) REG|281
5|5.2.2.2.7 A Critique of the Hypothetical Causation-Test Under the REG|284
4|5.2.2.3 The Exception to Article 3(1)(c) REG|286
4|5.2.2.4 The Exception Provisions of Allocation Pursuant to Article 3(3) and (4) REG|288
3|5.2.3 The Reimbursement Claim Pursuant to Article 19 REG in Conjunction with Article 3 REG: The Ex Post Facto Allocation of Financial Responsibility|289
4|5.2.3.1 Conditions for the Reimbursement Claim Under Article 19 REG|289
4|5.2.3.2 The Exclusive Right of the EU to Recover from the Member States Creates Accountability Gaps Under the REG When Member States Act as Respondent|291
5|5.2.3.2.1 Reasons (Not) Given for One-Sided Redress Mechanism Under the REG|291
5|5.2.3.2.2 Procedural Scenarios Where Member States Can Be Internationally Responsible Towards an Investor and the EU Bears Internal Financial Responsibility Pursuant to the REG|292
5|5.2.3.2.3 Result: The REG Should Be Amended to Give Member States a Right to Recover from the EU|295
3|5.2.4 The Binding Effect of Arbitral Awards and Settlements on the Ex Post Facto Allocation of Financial Responsibility Under the REG|296
4|5.2.4.1 The Binding Effect of the Amount of Damages as Awarded or Agreed Upon|296
4|5.2.4.2 The Binding Effect of the Content of the Award or Settlement as to the Illegality of the Treatment(s) Under the EU IIPA|298
5|5.2.4.2.1 The Allocation System Under the REG Is Not a Self-Sufficient System|299
5|5.2.4.2.2 The Conundrum of Shared Responsibility: Where Illegality of Treatment Under the EU IIPA Becomes Relevant for the Ex Post Facto Allocation of Financial Responsibility|299
5|5.2.4.2.3 Are Awards and Settlements Always Clear as to Which Treatment Breached the EU IIPA in Cases Where Multiple Treatments Are Challenged?|301
5|5.2.4.2.4 Discussion: Should the Ex Post Facto Allocation Be Based on the Treatment(s) Challenged by the Claimant or on the Treatment(s) Found by the Tribunal or Agreed by the Parties to Breach the EU IIPA?|303
3|5.2.5 Apportionment of a Financial Burden Into a EU and a Member State Share Under the REG|306
4|5.2.5.1 Scenarios Under the REG Requiring the Apportionment of a Financial Burden Into a EU and a Member State Share|306
5|5.2.5.1.1 Apportionment Based on a Single Treatment ‘Partly’ Required by EU Law|307
5|5.2.5.1.2 Apportionment Based on Multiple Treatments|307
5|5.2.5.1.3 Examples of EU-Member State Interaction Requiring Apportionment Under the REG|309
5|5.2.5.1.4 Arbitral Tribunals Have No Obligation to Render Awards That Can Be Perfectly Apportioned Under the REG|310
4|5.2.5.2 The REG Foresees the Scenarios Where an Apportionment Is Required But Provides No Modus Operandi on How to Split a Financial Burden Into a EU and a Member State Share|311
4|5.2.5.3 Possible Apportionment Criteria and Methods Under the REG for Splitting a Financial Burden Into a EU and a Member State Share|312
5|5.2.5.3.1 Shared Responsibility Under EU Law|313
5|5.2.5.3.2 How Specific Can You Get?|314
5|5.2.5.3.3 Pre-Determined Allocation Keys|314
5|5.2.5.3.4 Case-By-Case Analysis and the Use of Legal Principles Such as ‘Contributory Negligence’|315
2|5.3 Conclusions Chapter 5: Significant Steps Towards Federalisation Under EU IIPAs|316
1|Chapter 6: Specific Problems Caused by the Interrelation Between the Application of EU IIPAs and the Application of the REG|319
2|6.1 The Commission Incorrectly Decides to Confer Respondent Status to the EU|320
3|6.1.1 The Various Solutions to Accommodate Under the EU IIPA Challenges to the CJEU with Respect to the Commission’s Decision on Respondent Status|322
4|6.1.1.1 Deferment or Stay of Arbitral Proceedings|322
4|6.1.1.2 Parallel Proceedings and Co-Respondents in the Arbitration|323
4|6.1.1.3 Parallel Proceedings and a Single Respondent in the Arbitration|323
3|6.1.2 Discussion: What Is Viable and Realistic?|327
3|6.1.3 The Right to Effective Legal Protection Under EU Law Prevails over the Integrity of the Arbitration Proceedings and Their Smooth Functioning|329
3|6.1.4 Final Drafting and Interpretation Proposals to Accommodate Arbitration Proceedings Under a EU IIPA with CJEU Proceedings on the Commission Decision on Respondent Status|332
2|6.2 The Content of the Decision on Respondent Status Under the REG Might Unduly Influence the Arbitral Tribunal’s Finding on Illegality of the Challenged Treatment Under the EU IIPA|334
3|6.2.1 The Test Under Article 9(2)(a) REG in Conjunction with Article 3 REG Does Not Require an Assessment Whether the Actual Treatment Challenged by the Investor Breaches the EU IIPA|334
3|6.2.2 The Outcome of the Hypothetical Causation-Test Under the REG Might Influence an Arbitral Tribunal in Its Own Assessment on Illegality of the Challenged Treatment Under the EU IIPA|336
2|6.3 The Mandate of the Commission and the CJEU to Look into the Merits of the Arbitral Case for Allocating Financial Responsibility|338
3|6.3.1 What Does the REG Imply?|338
3|6.3.2 Risk of Inequitable Results|340
3|6.3.3 Threats to the Validity of Awards and Settlements Versus Risks of Disruptions in the Allocation and Reimbursement Procedure|344
3|6.3.4 Result: The Commission and the CJEU Should Have the Mandate to Look into the Merits of an Unclear Award or Settlement in Order to Find Out Which Treatment Is Illegal Under the EU IIPA|347
2|6.4 Conclusions Chapter 6: The Interrelation Between EU IIPAs and the REG Is Not Invulnerable to Frictions|348
1|Chapter 7: Epilogue|350
2|7.1 The ECT and the Application of Traditional Responsibility Rules|350
2|7.2 Post-Lisbon Mixed IIPAs and the Proceduralisation of International Responsibility|351
2|7.3 The Federalisation of Responsibility Under EU IIPAs|352
2|7.4 Challenges Ahead|353
1|Table of Cases|356
2|Court of Justice of the European Union|356
2|European Commission and Court of Human Rights|358
2|WTO Panel and Appellate Body Reports|358
2|International Court of Justice|359
2|International Tribunal for the Law of the Sea|360
2|German Case Law|360
2|Investment Treaty Case Law|360
1|Table of Treaties and Legislative and Policy Instruments|363
2|Treaties Concluded by the EU|363
2|EU Secondary Acts, Statements and Policy Instruments|364
2|Other Treaties and Documents|365
1|Bibliography|368
1|Monographs and Books|368
1|Chapters in Books|370
1|Articles|375
1|Working Papers and Online Resources|379
1|Contents|7
1|About the Author|14
1|Abbreviations|15
1|Chapter 1: Introduction|18
2|1.1 Setting the Scene: Responsibility of the EU and the Member States Under EU IIPAs|18
3|1.1.1 The Concept of IIPAs and ISDS: Abridged|19
3|1.1.2 The Emergence of EU IIPAs|19
3|1.1.3 With Power Comes Responsibility|21
3|1.1.4 The Dawn of a New Responsibility Regime|22
2|1.2 Aim and Structure of This Study|25
1|Chapter 2: International Obligations of the EU and the Member States Under EU IIPAs|28
2|2.1 Capacity to Conclude IIPAs: The EU and the Member States as Subjects of International Law|29
2|2.2 Competence to Conclude IIPAs: The EU’s and the Member States’ Treaty-Making Competence in the Field of Foreign Investment|31
3|2.2.1 The Link Between Treaty-Making Competences Under EU Law and the Participation of the EU and the Member States in the Conclusion of a Treaty|32
3|2.2.2 The Division of Competences Between the EU and the Member States with Respect to IIPAs|34
4|2.2.2.1 Treaty-Making Competences Regarding Foreign Investment Before Lisbon: Member State BITs and the ECT as a Treaty of ‘Shared Mixity’|35
4|2.2.2.2 Treaty-Making Competence Regarding Foreign Investment After Lisbon: EU-Only or ‘Shared Mixity’ as the Crossroads for Post-Lisbon IIPAs|37
2|2.3 International Obligations of the EU and the Member States Under EU IIPAs|43
3|2.3.1 Apportionment of Obligations Between the EU and the Member States Under Mixed IIPAs Along Competence Lines|43
4|2.3.1.1 Apportionment of Obligations Along Division of Competences Under Mixed Agreements Devoid of Contractual Delimitations|45
5|2.3.1.1.1 ECJ Jurisprudence on Apportionment of Obligations Under Mixed Agreements Devoid of Contractual Delimitations|46
5|2.3.1.1.2 No Synchronisation of the EU’s and the Member States’ International Legal Personality with Their Treaty-Making Competences|47
5|2.3.1.1.3 A Treaty Party’s Consent to Be Bound by a Treaty Is Generally Comprehensive and All-Encompassing|49
5|2.3.1.1.4 The General Irrelevance of ‘Internal Law’ Under International Law|50
5|2.3.1.1.5 The Exceptional Relevance of ‘Internal Law’ Pursuant to Article 46 VCLT/VCLT-IO|53
6|2.3.1.1.5.1 The ECT and the Application of Article 46 VCLT-IO|56
6|2.3.1.1.5.2 Post-Lisbon Mixed IIPAs and the Application of Article 46 VCLT|57
5|2.3.1.1.6 Result: No Apportionment of Obligations Between EU and Member States Along Competence Lines Under Mixed IIPAs That Are Devoid of Delimitations|61
5|2.3.1.1.7 Joint or Several Assumption of International Obligations Under Mixed IIPAs Devoid of Contractual Delimitations?|61
4|2.3.1.2 Apportionment of Obligations Under Mixed IIPAs Along Competence Lines as Per Contractual Delimitations|65
5|2.3.1.2.1 The Various Contractual Delimitation Tools That Link Obligations Under a Mixed Agreements to the Division of Competences|66
6|2.3.1.2.1.1 The ‘Carving Up’ of the Mixed Agreement|67
6|2.3.1.2.1.2 Extroverted ‘Competence Clauses’ Referring to the Competences Partition in the EU Treaties|67
6|2.3.1.2.1.3 Introverted ‘Competence Clauses’ Referring to ‘Declarations of Competence’|68
5|2.3.1.2.2 International Law Requires Delimitations to Be Clear and Specific in Order to Be Effective|72
5|2.3.1.2.3 Contractual Delimitations of Obligations Under the ECT and Post-Lisbon Mixed IIPAs|74
6|2.3.1.2.3.1 No Delimitation of Obligations Under the ECT Along Competence Lines|74
6|2.3.1.2.3.2 Should There Be Contractual Delimitations Along Competence Lines Under Post-Lisbon Mixed IIPAs?|79
7|2.3.1.2.3.2.1 No General Parallelism Between (External) Treaty-Making and (Internal) Implementing Competences of the EU and the Member States Regarding Mixed IIPAs|80
7|2.3.1.2.3.2.2 The Implementation of IIPAs Predominantly Relies on Negative Obligations to Not Act in a Certain Way|82
7|2.3.1.2.3.2.3 The Abstract Protection Standards Under IIPAs Can Be Breached by the Exercise of Any Regulatory Competence|84
7|2.3.1.2.3.2.4 Appraisal and Result: The Implementation of Mixed IIPAs Cannot Be Properly Translated into an Ex Ante Delimitation of Obligations Along Competence Lines|86
3|2.3.2 International Obligations Flowing from EU-Only IIPAs|88
4|2.3.2.1 Member States Do Not Assume International Obligations Under EU-Only IIPAs Under the Law of Treaties|89
4|2.3.2.2 Member States Do Not Assume International Obligations Under EU-Only IIPAs by Way of Article 216(2) TFEU|91
2|2.4 Conclusions Chapter 2: Obligations Under Mixed IIPAs Do Not Run Along Competence Lines|93
1|Chapter 3: International Responsibility of the EU and the Member States for Breaches of EU IIPAs Under Traditional Rules|95
2|3.1 International Responsibility for Breaches of EU IIPAs Under the Lex Generalis of the ILC Articles and International Case Law|96
3|3.1.1 The ‘Organic’ Model of Attribution of Conduct Under the ARIO and ARS|99
3|3.1.2 Capturing the Decentralised Implementation of EU Law by the Member States Under the Lex Generalis of the ARIO and International Case Law|100
4|3.1.2.1 The ARIO’s (Non-)Recognition of the Decentralised Implementation of EU Law by Member States|102
4|3.1.2.2 (Incoherent) International Case Law Regarding the Decentralised Implementation of EU Law by the Member States|107
5|3.1.2.2.1 WTO Case Law: International Responsibility of the EU for Member State Conduct Implementing EU Law|107
5|3.1.2.2.2 ECHR Case Law: International Responsibility of the Member States for Member State Conduct Implementing EU Law|111
4|3.1.2.3 Result: No Uniformity Under International Case Law and the ARIO|114
4|3.1.2.4 The WTO Approach Is Not Transferable to IIPAs|115
3|3.1.3 Where Incumbency of Obligations and Attribution Go Astray: The Risk of Accountability Gaps Under EU-Only IIPAs Under the ILC Articles|116
3|3.1.4 Conclusions on International Responsibility for Breaches of EU IIPAs Under the Lex Generalis of the ARS and ARIO|119
2|3.2 International Responsibility for Breaches of EU IIPAs Under Leges Speciales|120
3|3.2.1 Joint (and Several) Responsibility of EU and Member States Under Mixed IIPAs as Lex Specialis|122
4|3.2.1.1 Joint Responsibility as Expressly Stipulated in a Mixed Agreement|123
4|3.2.1.2 Joint Responsibility as the Default Rule Under a Mixed Agreement|126
3|3.2.2 The Division of Competences Between the EU and the Member States Under the EU Treaties as Lex Specialis|129
4|3.2.2.1 The Division of Treaty-Making Competences as the Criterion for International Responsibility|131
4|3.2.2.2 The Division of Competences as Derives from the EU Treaties|135
4|3.2.2.3 Conclusions on the Competence-Based Approach as Lex Specialis|138
3|3.2.3 The ‘What-Is-Required-by-EU-Law’-Approach as Lex Specialis Under the ECT|138
4|3.2.3.1 Electrabel v Hungary|140
4|3.2.3.2 AES Summit v Hungary|142
4|3.2.3.3 Conclusions on the ECT-Approach|143
3|3.2.4 A Federal State Analogy as Lex Specialis Under EU-Only IIPAs|144
4|3.2.4.1 International Responsibility of Federal States|146
4|3.2.4.2 Applying a Federal State Analogy to the EU and the Member States Under EU-Only IIPAs|149
3|3.2.5 Summary: The Various Leges Speciales Under EU IIPAs|152
2|3.3 Conclusions Chapter 3: The Traditional Rules of International Responsibility Are Not Designed to Capture the Inner Workings of the EU and the Member States|153
1|Chapter 4: The Proceduralisation and Internalisation of International Responsibility Under Post-Lisbon Mixed IIPAs|155
2|4.1 The Rationale and Motives for a Proceduralisation of International Responsibility|157
3|4.1.1 Guaranteeing Legal Certainty|157
3|4.1.2 Protecting the Autonomy of EU Law|160
2|4.2 The Form of Proceduralisation Under Post-Lisbon Mixed IIPAs|166
3|4.2.1 The Functioning of the Respondent Determination from the Perspective of the Mixed IIPA|166
4|4.2.1.1 The Procedure for Determining the Respondent Under Post-Lisbon Mixed IIPAs|167
5|4.2.1.1.1 The Regular Procedure|167
5|4.2.1.1.2 The Default Procedure|169
4|4.2.1.2 A Single-Respondent Model|171
4|4.2.1.3 The Mandatory Nature of the Respondent Determination Mechanism|172
5|4.2.1.3.1 The Mandatory Activation of the Respondent Determination Mechanism|172
5|4.2.1.3.2 The Mandatory Outcome of the Respondent Determination Mechanism|175
5|4.2.1.3.3 Result: The Mandatory Mechanism Under Post-Lisbon Mixed IIPAs Versus the Voluntary Mechanism Under the ECT|178
3|4.2.2 The Functioning of the Respondent Determination from the Perspective of the REG|179
4|4.2.2.1 Applicability of the REG|179
5|4.2.2.1.1 The Hybrid Subject Matter of the REG|180
5|4.2.2.1.2 The REG Is Not Applicable per se Under EU IIPAs|182
5|4.2.2.1.3 Different Ways to Render Effective the External Aspects of the REG Under Post-Lisbon EU IIPAs|183
4|4.2.2.2 The Respondent Determination Under the REG|184
5|4.2.2.2.1 The Reasons Presented by the Commission for Adopting a Single-Respondent Model Under the REG as Opposed to a Co-Respondent Model|184
5|4.2.2.2.2 Interests of the Member States and the EU to Act as Respondent|185
5|4.2.2.2.3 The Criteria Under the REG for Determining Respondent Status|186
6|4.2.2.2.3.1 The Principle: Respondent Is Who Afforded the Treatment|186
6|4.2.2.2.3.2 The First Exception: Member State Cedes Respondent Status to the EU|187
6|4.2.2.2.3.3 The Two Exceptions Under Article 9(2)(a) and (b) REG: Definition Issues|188
6|4.2.2.2.3.4 The Test Under Article 9(2)(a) REG, Accountability Gaps Under the REG and Possible Remedies|190
6|4.2.2.2.3.5 The Exception of Article 9(3) REG: Parallel WTO Proceedings|193
5|4.2.2.2.4 The Commission’s Decision on Respondent Status and Accountability Gaps|194
5|4.2.2.2.5 Member States and Investors Can Challenge the Commission Decision on Respondent Status Before the CJEU Pursuant to Article 263 TFEU|197
5|4.2.2.2.6 The Provisions on Respondent Status Under the REG Do Not Correspond to the Rules of International Responsibility|199
5|4.2.2.2.7 When the EU Defends Member State Treatment: The Importance of the Duty of Cooperation|201
4|4.2.2.3 Settlement Rights and Duties Under the REG|203
4|4.2.2.4 Payment Obligations Vis-à-Vis the Investor Under the REG|206
2|4.3 The Constitutive Effect of the Respondent Determination Under Post-Lisbon Mixed IIPAs on the International Responsibility of the Determined Respondent|206
3|4.3.1 The Precondition to a Constitutive Effect of the Respondent Determination: ‘Respondent’ or Mere ‘Representative’?|208
3|4.3.2 The Scope of the Constitutive Effect: The ‘EU-Member State Responsibility Window’|210
3|4.3.3 The Interpretation of the Respondent Determination Mechanism Under Post-Lisbon Mixed IIPAs with Respect to a Constitutive Effect|211
4|4.3.3.1 Textual Interpretation of Article 8.21(6)(7) CETA|214
5|4.3.3.1.1 Article 8.21(6)(7) CETA and the Ground of the Correct Application of the REG by the Commission|216
5|4.3.3.1.2 Article 8.21(6)(7) CETA and the Ground That the Respondent Lacks International Responsibility for the Conduct Impugned by the Investor|218
6|4.3.3.1.2.1 Article 8.21(6)(7) CETA Bars the Respondent from Invoking and the Tribunal from Assessing at the Merits Stage That It Is Not Internationally Responsible for the Challenged Conduct|219
6|4.3.3.1.2.2 Article 8.21(6)(7) CETA Bars the Respondent from Invoking and the Tribunal from Assessing at the Jurisdictional and Admissibility Stage That It Is Not Internationally Responsible for the Challenged Conduct|219
6|4.3.3.1.2.3 The ‘Monetary Gold’ Principle as a Bar to a Tribunal’s Jurisdiction|225
5|4.3.3.1.3 Result: The Textual Interpretation of Article 8.21(6)(7) CETA Underscores the Constitutive Effect of the Respondent Determination on International Responsibility|228
4|4.3.3.2 Possible Accountability Gaps and a Denial of Justice|229
4|4.3.3.3 Protection of the Autonomy of EU Law|232
4|4.3.3.4 Result on Interpretation: The Respondent Determination Mechanism Under CETA Has a Constitutive Effect on International Responsibility|232
3|4.3.4 Capturing the Constitutive Effect Under the ILC Articles|233
4|4.3.4.1 The Respondent Determination as Adoption and Acknowledgment of Conduct Under Article 11 ARS and Article 9 ARIO|233
4|4.3.4.2 The Respondent Determination Mechanism as a Lex Specialis of International Responsibility Under Article 55 ARS and 64 ARIO|235
2|4.4 Excursus: Proceduralisation of International Responsibility Under EU-Only IIPAs|237
3|4.4.1 No Consent to Arbitration of Member States Under EU-Only IIPAs per se|239
3|4.4.2 No International Responsibility of Member States Under EU-Only IIPAs per se|240
3|4.4.3 Article 35 VCLT and Member State International Responsibility|241
3|4.4.4 Article 62 ARIO and Member State International Responsibility|242
3|4.4.5 Drafting Proposals for EU-Only IIPAs that Enable Member State Participation|245
3|4.4.6 Result: Member States Are Free to Enter the Fray Under EU-Only IIPAs|246
2|4.5 Conclusions Chapter 4: A New Responsibility Regime Under Post-Lisbon Mixed IIPAs|247
1|Chapter 5: The Internal Allocation of Financial Responsibility Under the REG|251
2|5.1 The Case of Germany: Internal Allocation of Financial Responsibility Between the Bund and the Länder|254
3|5.1.1 Applicability of Article 104a(6) GG and the LastG|256
3|5.1.2 The Internal Reimbursement Claim of the Bund Against the Länder|258
3|5.1.3 The Allocation Criteria: Financial Responsibility Lies with the Originator of the Breach|258
3|5.1.4 The Apportionment of a Financial Burden Into a Bund and a Länder Share|261
3|5.1.5 Summary on Germany’s Allocation System|267
2|5.2 Internal Allocation of Financial Responsibility Between the EU and the Member States Under the REG|267
3|5.2.1 The Limited Value of Drawing Analogies from the EU State Responsibility Regime for Interpreting and Complementing the Allocation Criteria Under the REG|269
3|5.2.2 The Allocation Criteria Pursuant to Article 3 REG|272
4|5.2.2.1 Article 3(1)(a) and (b) REG: Financial Responsibility Lies with the Originator of the Treatment That Led to the Financial Burden|273
4|5.2.2.2 Financial Responsibility of the EU Pursuant to Article 3(1)(c) REG for Member State Treatment ‘Required by Union Law’|273
5|5.2.2.2.1 The Hypothetical Causation-Test Under Article 3(1)(c) in Conjunction with Article 2(l) REG|274
5|5.2.2.2.2 Avoiding a Breach of the EU IIPA Without Disregarding a EU Law Obligation|277
5|5.2.2.2.3 Member States ‘Incorrectly’ Implementing EU Law Obligations and Article 3(1)(c) REG|278
5|5.2.2.2.4 The Hypothetical Causation-Test Under the REG and the Proportionality Test Under EU Law|279
5|5.2.2.2.5 Comparison of Article 3(1)(c) REG with the EU State Responsibility Regime|280
5|5.2.2.2.6 A Single Member State Treatment Can ‘Partly’ Fall Under Article 3(1)(c) REG|281
5|5.2.2.2.7 A Critique of the Hypothetical Causation-Test Under the REG|284
4|5.2.2.3 The Exception to Article 3(1)(c) REG|286
4|5.2.2.4 The Exception Provisions of Allocation Pursuant to Article 3(3) and (4) REG|288
3|5.2.3 The Reimbursement Claim Pursuant to Article 19 REG in Conjunction with Article 3 REG: The Ex Post Facto Allocation of Financial Responsibility|289
4|5.2.3.1 Conditions for the Reimbursement Claim Under Article 19 REG|289
4|5.2.3.2 The Exclusive Right of the EU to Recover from the Member States Creates Accountability Gaps Under the REG When Member States Act as Respondent|291
5|5.2.3.2.1 Reasons (Not) Given for One-Sided Redress Mechanism Under the REG|291
5|5.2.3.2.2 Procedural Scenarios Where Member States Can Be Internationally Responsible Towards an Investor and the EU Bears Internal Financial Responsibility Pursuant to the REG|292
5|5.2.3.2.3 Result: The REG Should Be Amended to Give Member States a Right to Recover from the EU|295
3|5.2.4 The Binding Effect of Arbitral Awards and Settlements on the Ex Post Facto Allocation of Financial Responsibility Under the REG|296
4|5.2.4.1 The Binding Effect of the Amount of Damages as Awarded or Agreed Upon|296
4|5.2.4.2 The Binding Effect of the Content of the Award or Settlement as to the Illegality of the Treatment(s) Under the EU IIPA|298
5|5.2.4.2.1 The Allocation System Under the REG Is Not a Self-Sufficient System|299
5|5.2.4.2.2 The Conundrum of Shared Responsibility: Where Illegality of Treatment Under the EU IIPA Becomes Relevant for the Ex Post Facto Allocation of Financial Responsibility|299
5|5.2.4.2.3 Are Awards and Settlements Always Clear as to Which Treatment Breached the EU IIPA in Cases Where Multiple Treatments Are Challenged?|301
5|5.2.4.2.4 Discussion: Should the Ex Post Facto Allocation Be Based on the Treatment(s) Challenged by the Claimant or on the Treatment(s) Found by the Tribunal or Agreed by the Parties to Breach the EU IIPA?|303
3|5.2.5 Apportionment of a Financial Burden Into a EU and a Member State Share Under the REG|306
4|5.2.5.1 Scenarios Under the REG Requiring the Apportionment of a Financial Burden Into a EU and a Member State Share|306
5|5.2.5.1.1 Apportionment Based on a Single Treatment ‘Partly’ Required by EU Law|307
5|5.2.5.1.2 Apportionment Based on Multiple Treatments|307
5|5.2.5.1.3 Examples of EU-Member State Interaction Requiring Apportionment Under the REG|309
5|5.2.5.1.4 Arbitral Tribunals Have No Obligation to Render Awards That Can Be Perfectly Apportioned Under the REG|310
4|5.2.5.2 The REG Foresees the Scenarios Where an Apportionment Is Required But Provides No Modus Operandi on How to Split a Financial Burden Into a EU and a Member State Share|311
4|5.2.5.3 Possible Apportionment Criteria and Methods Under the REG for Splitting a Financial Burden Into a EU and a Member State Share|312
5|5.2.5.3.1 Shared Responsibility Under EU Law|313
5|5.2.5.3.2 How Specific Can You Get?|314
5|5.2.5.3.3 Pre-Determined Allocation Keys|314
5|5.2.5.3.4 Case-By-Case Analysis and the Use of Legal Principles Such as ‘Contributory Negligence’|315
2|5.3 Conclusions Chapter 5: Significant Steps Towards Federalisation Under EU IIPAs|316
1|Chapter 6: Specific Problems Caused by the Interrelation Between the Application of EU IIPAs and the Application of the REG|319
2|6.1 The Commission Incorrectly Decides to Confer Respondent Status to the EU|320
3|6.1.1 The Various Solutions to Accommodate Under the EU IIPA Challenges to the CJEU with Respect to the Commission’s Decision on Respondent Status|322
4|6.1.1.1 Deferment or Stay of Arbitral Proceedings|322
4|6.1.1.2 Parallel Proceedings and Co-Respondents in the Arbitration|323
4|6.1.1.3 Parallel Proceedings and a Single Respondent in the Arbitration|323
3|6.1.2 Discussion: What Is Viable and Realistic?|327
3|6.1.3 The Right to Effective Legal Protection Under EU Law Prevails over the Integrity of the Arbitration Proceedings and Their Smooth Functioning|329
3|6.1.4 Final Drafting and Interpretation Proposals to Accommodate Arbitration Proceedings Under a EU IIPA with CJEU Proceedings on the Commission Decision on Respondent Status|332
2|6.2 The Content of the Decision on Respondent Status Under the REG Might Unduly Influence the Arbitral Tribunal’s Finding on Illegality of the Challenged Treatment Under the EU IIPA|334
3|6.2.1 The Test Under Article 9(2)(a) REG in Conjunction with Article 3 REG Does Not Require an Assessment Whether the Actual Treatment Challenged by the Investor Breaches the EU IIPA|334
3|6.2.2 The Outcome of the Hypothetical Causation-Test Under the REG Might Influence an Arbitral Tribunal in Its Own Assessment on Illegality of the Challenged Treatment Under the EU IIPA|336
2|6.3 The Mandate of the Commission and the CJEU to Look into the Merits of the Arbitral Case for Allocating Financial Responsibility|338
3|6.3.1 What Does the REG Imply?|338
3|6.3.2 Risk of Inequitable Results|340
3|6.3.3 Threats to the Validity of Awards and Settlements Versus Risks of Disruptions in the Allocation and Reimbursement Procedure|344
3|6.3.4 Result: The Commission and the CJEU Should Have the Mandate to Look into the Merits of an Unclear Award or Settlement in Order to Find Out Which Treatment Is Illegal Under the EU IIPA|347
2|6.4 Conclusions Chapter 6: The Interrelation Between EU IIPAs and the REG Is Not Invulnerable to Frictions|348
1|Chapter 7: Epilogue|350
2|7.1 The ECT and the Application of Traditional Responsibility Rules|350
2|7.2 Post-Lisbon Mixed IIPAs and the Proceduralisation of International Responsibility|351
2|7.3 The Federalisation of Responsibility Under EU IIPAs|352
2|7.4 Challenges Ahead|353
1|Table of Cases|356
2|Court of Justice of the European Union|356
2|European Commission and Court of Human Rights|358
2|WTO Panel and Appellate Body Reports|358
2|International Court of Justice|359
2|International Tribunal for the Law of the Sea|360
2|German Case Law|360
2|Investment Treaty Case Law|360
1|Table of Treaties and Legislative and Policy Instruments|363
2|Treaties Concluded by the EU|363
2|EU Secondary Acts, Statements and Policy Instruments|364
2|Other Treaties and Documents|365
1|Bibliography|368
1|Monographs and Books|368
1|Chapters in Books|370
1|Articles|375
1|Working Papers and Online Resources|379