Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(a) ‘agreement’ means any international agreement covering provisions on foreign direct investment to which the Union is party, or the Union and its Member States are parties, and which provides for investor-to-state dispute settlement;

(b) ‘costs arising from the arbitration’ means the fees and costs of the arbitration tribunal and the arbitration institution, and the costs of representation and expenses awarded to the claimant by the arbitration tribunal, such as costs of translation, costs of legal and economic analysis and other relevant costs with respect to the arbitration proceedings;

(c) ‘dispute’ means a claim brought by a claimant against the Union or a Member State pursuant to an agreement and on which an arbitration tribunal will rule;

(d) ‘investor-to-state dispute settlement’ means a mechanism provided for by an agreement by which a claimant may initiate claims against the Union or a Member State;

(e) ‘Member State’ means one or more Member States of the European Union;

(f) ‘Member State concerned’ means the Member State which has afforded the treatment alleged to be inconsistent with the agreement;

(g) ‘financial responsibility’ means an obligation to pay a sum of money awarded by an arbitration tribunal or agreed as part of a settlement and including the costs arising from the arbitration;

(h) ‘settlement’ means any agreement between the Union or a Member State, or both, of the one part, and a claimant, of the other, whereby the claimant agrees not to pursue its claims in exchange for the payment of a sum of money or action other than the payment of money, including where the settlement is recorded in an award of an arbitration tribunal;

(i) ‘arbitration tribunal’ means any person or body designated under an agreement to rule on an investor-to-state dispute;

(j) ‘claimant’ means any natural or legal person which may bring a claim to investor-to-state dispute settlement pursuant to an agreement or any natural or legal person to whom the claims of the claimant under the agreement have been lawfully assigned;

(k) ‘Union law’ means the TFEU and the TEU, as well as any legal acts of the Union referred to in the second, third and fourth paragraphs of Article 288 TFEU and any international agreements to which the Union is party or the Union and its Member States are parties; for the sole purposes of this Regulation ‘Union law’ shall not mean the investment protection provisions in the agreement;

(l) ‘required by Union law’ refers to treatment where the Member State concerned could only have avoided the alleged breach of the agreement by disregarding an obligation under Union law such as where it has no discretion or margin of appreciation as to the result to be achieved.

CHAPTER II

APPORTIONMENT OF FINANCIAL RESPONSIBILITY

Article 3

Apportionment criteria

1. Financial responsibility arising from a dispute under an agreement shall be apportioned in accordance with the following criteria:

(a) the Union shall bear the financial responsibility arising from treatment afforded by the institutions, bodies, offices or agencies of the Union;

(b) the Member State concerned shall bear the financial responsibility arising from treatment afforded by that Member State;

(c) by way of exception to point (b), the Union shall bear the financial responsibility arising from treatment afforded by a Member State where such treatment was required by Union law.