BIT Claims in Respect of EU Sanctions: Jurisdictional Hurdles Arising out of the Division of Competence between the EU and Its Member States

BIT claims against EU Member States in respect of EU sanctions bring to the forefront of the debate the question whether EU Member States can be sued for EU conduct. This article examines the jurisdictional hurdles that arise from the division of competence between the EU and its Member States with respect to sanctions. In particular, it examines whether investment treaty tribunals seized of claims directed conduct attributable to the EU can decline jurisdiction ratione personae or declare claims inadmissible on the basis of the Monetary Gold principle. To do so, it discusses the EU legal framework applicable to sanctions and the case law of international courts and tribunals, including investment treaty tribunals, the European Court of Human Rights, and WTO panels, regarding the question of the EU Member States’ responsibility for EU conduct or conduct that is required by EU law.