May Misapplication of EU Law Give Rise to International Responsibility... of the Member State Under Investment Treaties?

Abstract

This paper seeks to answer the question whether Member States may be responsible for violation of investment standards by misapplication of EU law. It consequently deals with a number of preliminary issues. First, it asks whether liability for breaches of EU law lies within the exclusive do-main of the Member States courts and the Court of Justice of the European Union. Second, it analyzes the status of EU law under investment treaties, while having regard mainly to substantive aspects. Subsequently, it integrates misapplication of EU law into the matrix of state responsibility under inves-tment treaties. Finally, the paper offers some thoughts on how misapplication of EU law is treated un-der the Comprehensive Economic and Trade Agreement between the EU and Canada. The overall conclusion of the paper being that misapplications of EU law have remained important in the context of investment protection.