Published online by Cambridge University Press: 09 December 2021
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.