An umbrella clause generally reads as follows: "each party shall observe any obligation arising from a particular commitment it may have entered into with regard to a specific investment". We can infer from this statement that the aim of this clause is to protect any specific commitments by either party with respect to a given investment. This kind of clause is, for instance, aimed at protecting the investor against any contractual breaches, such as the variation of the terms of the contract, a wrongful termination of the contract, or the introduction of legislative measures having an impact on the performance of the contract. As underlined by Bishop et al., an umbrella clause does not amount to an unqualified guarantee but only applies when a party fails to observe "any obligation". Therefore the object designed to be protected by the clause are the obligations as arising from any commitment either of the contracting parties may have entered into.
[...] Therefore, and once again, the object designed to be protected by the clause are the obligations as arising from any commitment either of the contracting parties may have entered into. In other words, and as umbrella clauses are designed to enhance the protection of investor's rights, the object of such clauses is to protect the commitments or obligations entered into by the host State with respect to a given investment. The protective function of umbrella clauses lies in their effects. [...]
[...] It appears to me that this view that a jurisdictional clause referring all investment disputes to international arbitration vest the tribunal also with competence over contract claims is the best one. As mentioned in the readings, the position taken in SCS v. Pakistan deprives the umbrella clause from any practical meaning. In fact, the position adopted by the tribunal in this case is exactly the same as the one the tribunal would have adopted if the clause was not inserted in the investment agreement. This position contradicts clearly the intention of the parties and I believe that, as in SGS v. [...]
[...] As it was demonstrated by the readings, the interpretation of umbrella clauses and the determination of their effect are far from being self- evident. Consequently, case law is also far from being crystal clear and tribunals have reached diametrically opposed decision in cases having similar patterns. In SCS v. Pakistan, the tribunal found that the phrase “disputes with respect to investments” was descriptive of the factual subject matter of disputes but did not relate to the legal basis of the claims. [...]
[...] ARB/02/6, Decision on Jurisdiction SGS v. Pakistan, ICSID Case No. ARB/01/13 Decision on Jurisdiction Ch. Schreuer, Investment Treaty Arbitration and Jurisdiction over Contract Claims the Vivendi Case considered, in Todd Weiler, Investment Law and Arbitration (2005) Sinclair, The Origins of the Umbrella Clause in the International Law of Investment Protection ARB. INT'L 411 (2004) E. Gaillard, Investment Treaty Arbitration and Jurisdiction over Contract Claim the SGS Cases considered, in Weiler (p. 325) Bishop, Crawford, Reisman, supra p. [...]
[...] The benefits deriving from such a clause are numerous for the investors. First, the clause has the effect of making the agreement subject to the rules of international law instead of the local laws of the host country. This aspect enhances the legal certainty for the investor as it takes him away from the eventuality of biased legislative changes. In the same way, it takes the parties away from the jurisdiction of the host country courts. In that sense, the clause can be perceived as a pledge of neutrality and impartiality. [...]
Bibliographie, normes APA
Citez le doc consultéLecture en ligne
et sans publicité !Contenu vérifié
par notre comité de lecture
