The right way to interpret so-called 'umbrella clauses' has been debated for over a decade. Interpreted restrictively, these clauses merely reinforce the substantive commitments and protections listed in the remainder of the investment treaties in which they are found. An expansive interpretation on the other hand gives these clauses the effect of elevating purely contractual obligations undertaken by the state vis-à-vis specific investors to full-blown treaty obligations under international law, subject to the investment treaty's dispute settlement provisions. Although an expansive reading seems to have gained considerable ground amongst investment arbitration tribunals over the years, this article will show that the consequences of such an interpretation still differ materially in practice by looking at (i) what happens to the dispute resolution mechanism of the investment treaty when there is also an exclusive forum selection clause in the underlying contract between a state and a foreign investor, and (ii) what type of obligations can be elevated via umbrella clauses. Both states and investors are advised to take these practical implications into consideration when entering into investment agreements or treaties.
"Practical Implications from an Expansive Interpretation of Umbrella Clauses in International Investment Law,"
South Carolina Journal of International Law and Business: Vol. 11
, Article 5.
Available at: http://scholarcommons.sc.edu/scjilb/vol11/iss2/5