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Issues of Attribution: Responsibility of the EU in Investment Disputes under CETA

Journal article
Authors Hannes Lenk
Published in Transnational Dispute Settlement
Volume 13
Issue 1
Pages 1-23
ISSN 1875-4120
Publication year 2016
Published at Department of Law
Pages 1-23
Language en
Keywords Investment Disputes, CETA
Subject categories European law

Abstract

The Comprehensive Economic Trade Agreement (CETA) between the EU and Canada, and with it the entrance in the realm of investment arbitration of an international organization (IO), exposes tribunals to new challenges and complexities, such as the attribution of responsibility to the EU under international law. Investors also are affected by the situation, as it is vital for them to be able to identify the respondent to the dispute and understand the rules of attribution in order to avoid the inadmissibility of their claim. In order to clarify some of the questions raised by this situation, this article investigates the rules of attribution of responsibility to the EU in investment disputes under CETA, applying the International Law Commission’s (ILC’s) Draft Articles on the Responsibility of International Organizations (DARIO) as a normative and analytical framework. After undertaking an analysis of the rules of attribution under international law (with a particular emphasis on the general attribution rules enshrined in DARIO) and of the EU regulation on financial responsibility for investor-state arbitration under EU investment agreements (which exemplifies the EU perspective on responsibility in the field of investment arbitration), this article demonstrates that the application of DARIO in the context of CETA investment disputes can yield satisfactory results without the need to resort to special attribution rules. In particular, on the basis of the CETA text and the envisaged mechanism for the determination of the respondent to investment disputes, this article concludes that while CETA successfully introduces a dynamic and accessible system for investors to identify respondents to their claims, it does not adequately address issues relating to the attribution of responsibility to the EU and its Member States.

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