Environmental Engineering Reference
In-Depth Information
restrictively as well, but highlighted that the application of the umbrella clause
depends on the terms of the respective BIT and its interpretation.
225
The idea that ICSID tribunals can deal with contract claims as well for a better
harmonization of
is also called the
integrationist approach.
226
Therefore, some tribunals accepted the extension of
jurisdiction according to application of the umbrella clause.
227
Hence, the invest-
ment contract between the investor and the state is within the scope of the BIT.
228
If
the BIT does not cover non-BIT related
'
(
...
) overlapping norms and procedures (
...
)
'
of an umbrella clause,
some view this as an
'
internationalization
'
of contract claims.
229
However, an
umbrella clause does not transfer the question of contracts into the question of
treaty law, which means the contract is examined according to the applicable law
concluded in the contract by the ICSID tribunal.
230
It is essential to judge each
umbrella clause individually and hence there is an obligation to interpret each
umbrella clause.
231
In recent years, more ICSID tribunals have allowed the appli-
cation of an umbrella clause to put contract claims on the same level as treaty
claims.
232
legal positions
'
'
3.5.1.2.1 Application of the Umbrella Clause and Its Implications
The application of the umbrella clause can be quite difficult as ICSID tribunals also
differ in definition and setup of an umbrella clause application. In most cases, the
umbrella clause comes into play if the dispute is in front of the national courts of the
host state.
233
In these cases, the investor often tries to justify ICSID tribunal
s
'
jurisdiction because of application of the umbrella clause.
234
225
Reviewing the BIT and interpretation of respective regulations, in: ICSID [2009] ARB/07/9,
55-56 paras 141-142; ICSID [2004] ARB/02/13, 42 paras 127-128.
226
Shany (
2005
), 835 (844).
227
ICSID [2007] ARB/02/8—Award, 59-60 paras 204-206; ICSID [2007] ARB/01/3—Award,
87 para 274; ICSID [2005] ARB/01/11—Award, 66 paras 60-62; ICSID [2004] ARB/02/6, 43-49
paras 113-129; To a limited extend, in: ICSID [2002] ARB/97/3—Annulment, 89 (128) para 96;
Peterson (
2010
) In parallel decisions, tribunals diverge on admissibility of umbrella clause claims,
1 (3);
Ad Hoc
Arbitration under the Agreement between the Kingdom of the Netherlands and the
Republic of Poland on Encouragement and Reciprocal Protection of Investment [2005] Partial
Award, 85 para 260; In general supporting umbrella clauses, in: Hunter (
2007
), 165 (168).
228
ICSID [2004] ARB/02/6, 45 para 119.
229
Griebel (
2008
), 85; cf Walter (
2006
), 815 (816).
230
ICSID [2004] ARB/02/6, 48 para 126.
231
ICSID [2005] ARB/01/11—Award, 61 para 50;
Ad Hoc
Arbitration under the Agreement
between the Kingdom of the Netherlands and the Republic of Poland on Encouragement and
Reciprocal Protection of Investment [2005] Partial Award, 78-79 para 247.
232
Fiebiger (
2010
), 269 (270).
233
Walter (
2006
), 815 (821).
234
Walter (
2006
), 815 (821).
