The Determination of the Respondent: A Telling Silence or a Lacuna in the EU Proposal for the Establishment of an International Court System (ICS)?

Abstract

This paper tackle with the issue of the determination of the correct respondent in claims brought by foreign investors against the EU and/or a member state on the basis of the new EU investment agreements. The effect of the determination of the respondent goes far beyond the identification of the legal entity – the EU or a member state – that will be the addressee of the claim of the investor and will act as the disputing party in the arbitral proceedings. Investor-to-state dispute settlement can result in awards for monetary compensation. Furthermore, significant costs for administering the arbitration as well as costs relating to the defence of a case will inevitably be incurred in any such case. The most important consequence therefore should be the identification of the legal entity financially responsible for the implementation of the award, in case the arbitral tribunal finds the claim in whole or in part well founded. Nor the EU proposal for Investment Protection and Resolution of Investment Disputes or the FTAs so far negotiated by the EU, however, expressly provide that the determination of the respondent is in fact also – and most importantly – the determination of the entity financially responsible.

Keywords: Arbitration; Investor state dispute settlement; International court system