Chapter 3 looks at the rules of the organisation. It concludes that the European Commission’s claim that international responsibility follows the internal division of competences does not find support in international dispute-settlement practice. The book reveals that the European Union and its Member States are independently responsible for their joint obligations. The central argument is that while states are free to transfer their powers to an organisation, their international obligations are non-transferable.

This book concludes that in international economic law, shared responsibility is distributed among subjects of international law which are part of a common institutional structure based on which of them is best placed to remedy breach. This is so because the purpose of international economic adjudication is restorative rather than punitive. Allocation of responsibility does not follow attribution of conduct (or breach) but instead depends on the system of remedies available under a given treaty. Allocation of responsibility is thus a dynamic concept which is not tied to breach but rather depends on the nature of the treaty regime in question.

Chapter 6 examines how tribunals determine the proper respondent in the trade and investment regimes. It focuses on WTO law and the ECT regime because their mixed form provides a relevant context in which to explore responsibility of the EU and its Member States for joint obligations. In light of an extensive case-law analysis, this study extrapolates patterns in the tribunals’ reasoning. It is argued that WTO dispute-settlement employs what this study refers to as a “the positive solution test” to identify the proper respondent. Arbitral tribunals operating under the ECT, on the other hand, allocate responsibility to the subject which is the proximate cause of harm.

Chapter 9 attempts to apply the normative findings of this book to new-generation FTAs concluded by the EU, primarily to CETA. The analysis is based on the data gathered during the discussions with officials involved in the negotiation of these agreements. The study explains how the new FTAs establish primacy of procedural rules which place the EU at the forefront of dispute resolution. Finally, this study proposes some critical questions with the aim of opening further debate on the policy implications of functional international responsibility.

The principle of joint responsibility is only halfway to solving the question of the international responsibility of the EU. That the EU and its Member States are independently responsible for their joint obligations does not necessarily mean that a breach will result in their joint and several responsibility. Chapter 4 accordingly addresses the exclusive responsibility of the EU and its Member States. This chapter explores the hypothesis suggested by the European Commission that authorities of the EU act as de facto organs of the Union when they implement EU law. For this purpose, this study delves into the travaux préparatoires of the ILC rules of responsibility to search for the concept of an organ and agent. It is suggested that while the ILC adopts a broad reading of these terms, international dispute-settlement practice does not support the European Commission’s claim that conduct of Member States’ organs is attributed to the EU when they carry out EU policies.

The aim of Chapter 7 is to explain the patterns identified in Chapter 6. In particular, it looks into the characteristics of the WTO and the ECT treaty regimes to explain why the EU is the optimal respondent in trade disputes, whereas Member States are exclusive respondents in investment arbitration.

Chapter 2 explores the ILC framework of international responsibility. The aim of the analysis is to identity rules which govern the allocation of international responsibility in a multi-layered structure where sovereignty is shared between different subjects of international law. This study argues that the purpose of both the ARIO and the ARSIWA is to determine whether a subject of international law is internationally responsible. If the question of responsibility arises in the context of a multi-layered structure, such as that of the EU, additional questions arise. The allocation of international responsibility within an international body falls outside the scope of the ARIO framework. Instead, this book suggests looking for guidance in the rules of organisation and the international dispute-settlement practice in which these rules operate.

This chapter introduces the issue addressed in this study, that is the allocation of international responsibility in a multi-layered structures like the European Union. It discusses the key doctrine on the question of responsibility of international organisations and points to the different approaches that dominate the discourse. This chapter also addresses the scope of the study, noting that it is focused on the questions of international responsibility that arise in international economic law. The introductory chapter also notes the methods of research employed in this study.

Chapter 8 adds to Chapter 7 by examining the special WTO cases of multiple respondents. It argues that Member States act as co-respondents when their restorative actions are necessary for compliance purposes. That depends on the nature and scope of the claim which, in turn, defines the remedy.

Chapter 5 explores the nature of international economic obligations. It suggests that remedies in international economic regimes have a restorative rather than punitive purpose. It is argued that attribution of breach may not be relevant, or that relevant, in the international economic law context. This study posits that what international courts and tribunals ask is not who is responsible for a breach but rather who is best placed to bear responsibility. In international economic law, shared responsibility typically raises the question of the proper respondent(s).