Determining International Responsibility Under the New Extra-EU Investment Agreements: What Foreign Investors in the EU Should Know
The EU’s newly acquired competence over foreign investment poses largely unprecedented legal challenges: the Union’s unique structure and functioning are bound to raise questions about the traditional format of international investor-State arbitration. Anticipating these challenges, the European Commission has proposed a Regulation on managing the financial responsibility that arises out of such arbitrations; a revised version of this proposal was adopted by the European Parliament and the Council of the European Union. After outlining the contemporary international investment regime, as well as the relevant aspects of the EU legal system, this Article scrutinizes three problematic issues under international law that arise from the Regulation: respondent status in international arbitral proceedings, attribution of treatment, and compliance with the final award. This Article also discusses the means of recourse open to EU Member States dissatisfied with the EU’s performance as respondent or its apportionment of financial responsibility.