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Conflict of Treaty and Contract Forum in Investment Arbitration: The Umbrella Effect


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1 Hidayatullah National Law University, Raipur (C.G), India
     

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"Throughout the past half-century, the field of international investment law has been largely defined by the rise of bilateral investment treaties (BITs). Meant to replace traditional treaties of friendship, commerce, and navigation, these instruments are designed to encourage foreign investment by offering a baseline of substantive protection to investors entering a foreign state. The value of these treaties is especially potent for developing nations, where judicial systems often fail to measure up to investor expectations. Thus, to attract foreign investment, BITs normally permit claimants to bypass these questionable judicial systems and submit certain disputes to international arbitration. Most notably, arbitration is available through the International Centre for the Settlement of Investment Disputes (ICSID), which operates under the auspices of the World Bank. Currently, over 200 cases have been concluded under ICSID, with over 100 pending. Beyond the actual dispute resolution process itself, the pervasiveness of BITs cannot be overlooked: The United States currently has forty BITs in force, among approximately 2600 concluded worldwide. In the past decade, ICSID tribunals have struggled to determine the proper scope of certain clauses that purport to include contractual claims within the "umbrella" of a BIT's protections. These "umbrella clauses" are considered innovative because, by general consensus, "mere violation" of a contract cannot trigger treaty protection under customary international law."
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  • Bernardo M. Cremades and David J.A. Cairns, The Brave New World of Global Arbitration, Journal of World Investment, Vol. 3, 2002, p. 173-209

  • Dolzer and Stevens, Bilateral Investment Treaties, Kluwer Law, 1995, pp. 81-82

  • E. Gaillard, L. Arbitragesur le fondement des traités de protection des investissements,Eng. Edition,Revue de lArbitrage p.868

  • C. Schreuer, Travelling the BIT Route: of Waiting Periods, Umbrella clauses and Forks in The Road, Journal of World Investment, 2004, pp.231-256.

  • Nolan and Baldwin, Treatment of Contract-Based Claim in Treaty-Based Arbitration, Mealeys Int ernational Arbitration Report, Vol. 21(6), 2006, p.115

  • Stanimir A. Alexandrov, Breaches of Contract and Breaches of Treaty – The Jurisdiction of Treaty-based Arbitration Tribunals to Decide Breach of Contract Claims in SGS v. Pakistan and SGS v. Philippines, Journal of World Investment, Vol. 5 , 2004 ,p. 555

  • James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge University Press, 2002, p. 194

  • Ian Brownlie Q.C., Principles of Public International Law, 5th Ed., Oxford University Press, pp. 553

  • J. Vandevelde, U.S. Bilateral Investment Treaties: The Second Wave, Michigan Journal of International Law, Vol. 14, 1993, p. 621-704

  • Charles N. Brower and Jeremy K. Sharpe, Multiple and Conflicting International Arbitral Awards, Journal of World Investment, Vol. 4, 2003, p. 211-222

  • UNCTAD, National Treatment: UNCTAD Series on Issues in International Investment Agreements, New York and Geneva, 1999, p. 212SD Sutton,

  • Maffezini v. Kingdom of Spain and ICSID Secretary General is Screening Power, Arbitration International, Vol. 21 (1), 2005, p. 115

  • Art. 4 of Draft Articles on MFN Clause in 30th Session of ILC in 1978

  • UNCTAD, Most Favoured Nation Treatment, UNCTAD Series on International Investment Agreements, New York and Geneva, 1999, p. 5

  • ICSID Case No. ARB/01/11 (2005) 16. Alex Genin, Eastern Credit Limited, Inc., and A.S. Baltoil v. The Republic of Estonia, ICSID Case No. ARB/99/2 (2001)

  • Christoph Schreuer, The ICSID Convention: A Commentary, Cambridge University Press, 2001, p. 168

  • James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge University Press, 2002, p. 602

  • ICSID Case No. ARB/02/1 (2006)

  • R. J. Jennings, State Contracts in International Law, British Yearbook , Vol. 37, 1961, p.156

  • Ian Brownlie Q.C., Principles of Public International Law, 5th Ed., Oxford University Press, pp. 553

  • ICSID Case No. ARB/97/3 (2001)

  • ICSID Case No. ARB/97/3 (2002)

  • Proceedings of Symposium co-organised by ICSID, OECD and UNCTAD, Improving Investor-State Dispute Settlement, 38698

  • Supra Note 45


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  • Conflict of Treaty and Contract Forum in Investment Arbitration: The Umbrella Effect

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Authors

Kunwar Aditya Singh
Hidayatullah National Law University, Raipur (C.G), India

Abstract


"Throughout the past half-century, the field of international investment law has been largely defined by the rise of bilateral investment treaties (BITs). Meant to replace traditional treaties of friendship, commerce, and navigation, these instruments are designed to encourage foreign investment by offering a baseline of substantive protection to investors entering a foreign state. The value of these treaties is especially potent for developing nations, where judicial systems often fail to measure up to investor expectations. Thus, to attract foreign investment, BITs normally permit claimants to bypass these questionable judicial systems and submit certain disputes to international arbitration. Most notably, arbitration is available through the International Centre for the Settlement of Investment Disputes (ICSID), which operates under the auspices of the World Bank. Currently, over 200 cases have been concluded under ICSID, with over 100 pending. Beyond the actual dispute resolution process itself, the pervasiveness of BITs cannot be overlooked: The United States currently has forty BITs in force, among approximately 2600 concluded worldwide. In the past decade, ICSID tribunals have struggled to determine the proper scope of certain clauses that purport to include contractual claims within the "umbrella" of a BIT's protections. These "umbrella clauses" are considered innovative because, by general consensus, "mere violation" of a contract cannot trigger treaty protection under customary international law."

References