Functional Responsibility of International Organisations: The European Union and International Economic Law

Description

This book provides a novel approach to the allocation of international responsibility in a multilayered structure like the European Union. Introducing a new concept of functional international responsibility, this study finds that in international economic law the focus of international dispute settlement bodies is not on the responsible party, but on a party best placed to bear responsibility. The book offers a comprehensive analysis of international rules of responsibility and international dispute settlement practice, primarily that of the World Trade Organization and investment arbitration. The study offers a practically applicable approach to questions of international responsibility which will assist international adjudicators, EU and Member States' officials and third country government agents who negotiate economic agreements and are involved in international economic disputes. The book is also relevant to those interested in the governance and accountability questions under the new EU-UK Trade and Cooperation Agreement. Cover Half-title page Title page Copyright page Dedication Contents Preface Acknowledgements Table of Cases List of Abbreviations and Acronyms 1 Introduction 1.1 Scope of Research 1.2 Sources and Research Method 1.3 Book Structure Part I The Legal Foundations of the International Responsibility of the European Union 2 The Governing Law 2.1 Introduction 2.2 The ILC Framework – (In)sufficient? 2.3 Attribution versus Allocation of International Responsibility 2.3.1 The Purpose and Subject Matter of the Rules of Attribution 2.3.2 Rules of Attribution Apply Only to Separate Legal Persons 2.3.3 Rules of Attribution Do Not Govern Allocation of Responsibility 2.3.4 The Notion of Allocation of International Responsibility 2.4 The Rules of Organization 2.5 Conclusion 3 Independent Responsibility of the EU and Its Member States 3.1 Introduction 3.2 Competence-based International Responsibility 3.3 The Non-transferability of International Obligations 3.3.1 The Rule of Non-circumvention 3.3.2 The ECtHR Case Law 3.3.3 The ECT Case Law 3.3.4 Binding Decisions of an Organization 3.3.5 The Principle of Joint Obligations 3.3.6 The WTO Case Law 3.3.7 The CJEU Case Law 3.4 The Principle of Independent Responsibility 3.5 Conclusion 4 The Concept of an Organ and Agent of the EU 4.1 Introduction 4.2 ILC Doctrine 4.2.1 The ARSIWA Framework 4.2.2 The ARIO Framework 4.3 A De Facto Organ of the EU 4.4 Conclusion Part II Functional International Responsibility 5 The Nature of Remedies in International Economic Law 5.1 Introduction 5.2 Remedies in International Law 5.2.1 The System of Remedies in International Law 5.2.2 The Function of Remedies in International Law 5.2.3 The Liability Rule in International Economic Law 5.3 Remedies under the WTO Regime 5.3.1 The WTO’s Liability Rule 5.3.2 Compliance 5.3.3 Retaliation 5.3.4 The Primacy of Compliance over Retaliation 5.4 Remedies under Investment Treaties 5.5 Conclusion 6 Identification of the Proper Respondents 6.1 Introduction 6.2 Mapping the Normative Framework 6.3 The Positive Solution Test in WTO Disputes 6.3.1 Efficient Breach 6.3.2 Limitation to Necessary Persons 6.3.3 Limitation to Necessary Measures 6.3.4 Timing of the Determination of the Proper Respondent 6.3.5 Procedural Techniques 6.4 The Proximate Cause in Investment Disputes 6.4.1 The Concept of Proximate Cause 6.4.2 Proximate Cause in Practice 6.4.2.1 First Category: Binding EU Decisions 6.4.2.2 Second Category: Authorized by the EU 6.4.2.3 Third Category: Required by EU Law 6.4.3 Regulatory Compliance Claims 6.5 Conclusion 7 The Optimal Respondent 7.1 Introduction 7.2 The EU as the Optimal Respondent in WTO Disputes 7.2.1 The EU’s Exclusive Competence in Trade 7.2.2 The Internal Interdependency under Mixed Agreements 7.2.3 The WTO as a Mixed Treaty 7.2.4 The EU–Member States Bloc 7.2.5 The Duty of Cooperation 7.3 Member States as the Primary Respondent in Investment Disputes 7.3.1 Fair and Equitable Treatment 7.3.2 Denial of Justice and Due Process 7.3.3 Arbitrary and Discriminatory Treatment 7.3.4 Legitimate Expectations 7.3.5 Expropriation 7.3.6 Umbrella Clauses 7.4 Conclusion 8 Multiple Respondents in WTO Dispute Settlement 8.1 Introduction 8.2 Correlation of Claims and Remedies 8.3 Claims ‘As Such’ and Claims ‘As Applied’ 8.4 Identification of Multiple Respondents 8.4.1 Customs Disputes 8.4.2 Subsidies Disputes 8.4.3 Regulatory Measures 8.5 Conclusion 9 Normative Implications for the EU’s Free Trade Agreements 9.1 Introduction 9.2 Application of the Normative Findings to new-generation FTAs 9.2.1 The Question of Mixity 9.2.2 Application of the Normative Findings to Trade Disputes 9.2.3 Application of the Normative Findings to Investment Disputes 9.3 The Mechanism for the Determination of Respondents under the new-generation FTAs 9.4 Procedural Safeguards under the new-generation FTAs 9.4.1 Safeguards against Inadmissibility Defence 9.4.2 Safeguards against Micula-Type Situations 9.4.3 The Internal Code of Conduct under Regulation No. 914/2014 9.5 Conclusion 10 Conclusions Bibliography Index