11 The Evolution of EU Investment Law and the Future of EU-China Investment Relations

European Yearbook of International Economic Law 2015

“…The debate has recently C 16 April 2014 on the proposal for a regulation of the European Parliament and of the Council establishing a framework for managing financial responsibility linked to investor-state dispute settlement tribunals established by international agreements to which the European Union is party, COM(2012) 0335-C7-0155/2012-2012/0163, which attempts to ensure that the adoption of the regulation in question 'shall not be interpreted as an exercise of shared competence by the Union in areas where the Union's competence has not been exercised'. See also Bungenberg and Titi (2014). 72 European Commission, Proposal for a Regulation establishing a framework for managing financial responsibility linked to investor-state dispute settlement tribunals established by international agreements to which the European Union is party, COM(2012) 335 final, 2012/0163 (COD), 21 June 2012, p. 5.…”

“…42 See Titi (2014b), p. 357. 45 For a more detailed analysis of some of these issues, see Bungenberg and Titi (2014). 44 See also UNCTAD, Recent Developments in Investor-State Dispute Settlement (ISDS), IIA Issues Note, No.…”

“…./2014 of the European Parliament and of the Council establishing a framework for managing financial responsibility linked to investor-to-state dispute settlement tribunals established by international agreements to which the European Union is party' (hereinafter Position of the European Parliament), 52 and which was adopted with the legislative resolution of 16 April 2014, 53 the Parliament expressly states that EU investment agreements 'may' provide for ISDS. 63 The Proposal's main argument was that financial liability born out of an investment dispute needs to be attributed to the actor affording the disputed treatment; in other words, where the EU or an EU institution is responsible 56 On these issues, see also Bungenberg and Titi (2014). 55 One of the crucial questions that have confronted the EU concerns the highly debated issue of how to apportion responsibility and financial liability between the EU and its Member States as a consequence of investment disputes, and the that requires EU investment agreements to provide the same high level of protection as Union law but not higher, raising the question of whether this phrasing could eventually also relate to procedural standards of investment protection.…”

“…70 If a treaty were to be concluded as a mixed agreement, the Commission considered that the responsible actor should be determined 'on the basis of the competence for the subject matter of the international rules in question, as set down in the Treaty' rather than on who were the authors of the act. 74 Bungenberg and Titi (2014). Therefore, while in principle it is the EU that should act as respondent in disputes concerning alleged violations of such provisions, it is possible to empower a Member State to act as respondent under given circumstances.…”