The eu institutions are committed to include investor-State arbitration clauses in eu iias with third States. However, there are at least three unresolved problems in doing so. First, the eu is not, and is unlikely to become, a Contracting Party to the icsid Convention. While this deficiency may be remedied by replicating relevant provisions of the icsid Convention, eu investors cannot benefit from icsid’s institutional clout which could facilitate enforcement of awards. Secondly, there may be problems from an eu law perspective. Arguably, the eu could only include investor-State arbitration clauses in eu iias with third States following a change in eu primary law such that investment tribunals could request a preliminary ruling from the cjeu in accordance with Article 267 tfeu. Thirdly, to date there appears to be no agreement within the eu on the question who will be the proper respondent in an arbitration.
European Commissionsupra note 65 p. 3. This view is not entirely convincing and Member States are unlikely to agree to that position. See instead of many Markus Burgstaller ‘Vertical Allocation of Competences for Investment Treaties in the European Union’ in J. Nakagawa (ed.) Multilateralism and Regionalism in Global Economic Governance – Trade Investment and Finance (Routledge 2011) 125–138; Marc Bungenberg ‘The Division of Competences Between the eu and its Member States in the Area of Investment Politics’ in M. Bungenberg J. Griebel and S. Hindelang (eds.) Eur. Ybk. Int’l Econ. L. Special Issue: International Investment Law and eu Law (Springer 2011) 29–42; August Reinisch ‘The Division of Competences Between the eu and Its Member States “After Lisbon”’ in M. Bungenberg J. Griebel and S. Hindelang (eds.) Eur. Ybk. of Int’l Econ. L. Special Issue: International Investment Law and eu Law (Springer 2011) 43–54; Angelos Dimopoulos eu Foreign Investment Law (oup 2011) 65–124.