Environmental Engineering Reference
In-Depth Information
3.3.1.3 Unresolved Conflicts
Due to the shift in competence, there are some unresolved issues, which mainly deal
with the question of dispute settlement. The EU stressed that there must be an
effective investment dispute resolution.
90
It is problematic that the ICSID Conven-
tion is only
open to signature and ratification by states members of the World Bank
or party to the Statute of the International Court of Justice
'
and that the EU qualifies
under neither.
91
The European Parliament mentioned that it
'
'
is aware that the EU
cannot use existing (
) ICSID and UNCITRAL dispute settlement mechanisms
since the EU as such is a member of neither organization.
...
92
Therefore, it
calls on
the EU to include a chapter on dispute settlement in each new EU investment treaty
in line with the reforms suggested in this resolution
'
'
requests that the European
Commission and the Member States take up their responsibility as major interna-
tional players to work towards the necessary reforms of the ICSID and UNCITRAL
rules.
and
'
'
93
It is doubtful that the ICSID Convention is going to be changed easily to
make the EU a member and it is not clear why the European Parliament also
excludes UNCITRAL.
94
The result would be that only UNCITRAL or other
arbitration rules are available for all EU-BITs.
95
Furthermore, the question of who the respondent will be needs to be clarified if
an EU member state is sued. The European Commission issued a proposal on how
to handle the distribution of roles between the EU and its member states in relation
to the conduct of disputes under agreements to which the Union is a party.
According to the proposal, the EU would be the respondent,
'
where the treatment
alleged to be inconsistent with the agreement is treatment afforded by one or several
Union institutions
'
, the member state would be the respondent,
where the treatment
'
'
in question is afforded by the Member State
, and lastly the EU would be again act
'
as the respondent
in respect of treatment afforded by a Member State (
...
) (and the
'
member state) (
) where the
European Commission decides that issues of Union law are involved.
...
) has opted not to act as respondent (
...
) (or) (
...
96
This
proposal builds on the ECT, where the EU and its member states can decide within
30 days who will be the respondent.
97
Finally, issues remain on how the ECJ will handle the possibility that tribunals
might rule over EU law.
98
The ECJ is very reluctant if it comes down to its
'
90
Reinisch (
2014
), 111 (133).
91
European Commission (
2010
), 10; Reinisch (
2014
), 111 (134).
92
European Parliament (
2011
).
93
European Parliament (
2011
).
94
Reinisch (
2014
), 111 (134).
95
Reinisch (
2014
), 111 (134).
96
European Commission (
2012a
), 6.
97
Reinisch (
2014
), 111 (133).
98
Reinisch (
2014
), 111 (154).
