The Desertec Concept and the ICSID Convention - Investing into North African Solar Power - page 162

However, ICSID tribunals applying the umbrella clause do not even agree on the
prerequisites for utilizing the umbrella clause. Some tribunals point out that not
every breach of contract is a violation of the umbrella clause, as the umbrella clause
is only affected if the breach relates to a sovereign state function or power. 235 In
another case, the ICSID tribunal concluded that the wording of the BIT was clear
and thus there was coverage of

236

' any obligation. '

s decisions do not provide legal certainty.
Reviewing the literature, most authors are in favor of an investor-friendly interpre-
tation of umbrella clauses. In one case, the ICSID tribunal pointed out that laws and
obligations can become obligations within the BIT if these regulations target
foreign investors. 237 Hence, an abstract law, which applies in general, can be
subject to the umbrella clause if it stimulates investments and creates a

It is obvious that the ICSID tribunal '

legitimate

'

238 There are concerns that the umbrella clause might “get out of
hand.” 239 Others point out that the umbrella clause would be meaningless if it is
restricted contrary to its exact wording and meaning. 240 One example is a German
formulation of an umbrella clause. If there is a formulation like, the jurisdiction of an
ICSID tribunal encompasses

expectation.

'

, 241 every
claim, even contract claims, is within the scope of the ICSID Convention. 242 Conse-
quently, it is important to analyze and interpret each BIT umbrella clause individually.

alle Streitigkeiten zwischen Staat und Investor

' '

3.5.1.2.2 Interpretation of Art. 11 of the G/M-BIT

The purpose of interpretation is to find the exact meaning of the provision without
changing it. 243 As mentioned above, most ICSID tribunals highlighted the impor-
tance of analyzing each umbrella clause individually. In the case of the G/M-BIT,
Art. 11 deals with the issue. Due to the different interests of developed and
developing countries, treaty interpretation is nowadays an important tool. 244 Inter-
national law recognizes three different types of treaty interpretation. The first
emphasizes the wording of the treaty, the second examines the intention of the
parties, and a third approach asserts the object and purpose of the treaty. 245

235 ICSID [2007] ARB/02/16—Award, 92 paras 310-311; ICSID [2005] ARB/03/3, 85 para 260.
236 ICSID [2007] ARB/02/8—Award, 59-60 paras 205-206.
237

ICSID [2006] ARB/02/1—Decision on Liability, 53 para 175.

238

Walter ( 2006 ), 815 (822); Griebel ( 2008 ), 87.

239

Hauschka ( 2005 ), 1550 (1555-1556).

240

Griebel ( 2008 ), 86.

241

All disputes between the investor and the Contracting State.
242 Gill et al. ( 2004 ), 397 (409); Walter ( 2006 ), 815 (821); cf Griebel ( 2008 ), 83 and 85; ICSID
[2004] ARB/02/6, 49-52 paras 130-135; ICSID [2002] ARB/97/3—Annulment, 89 (115) para 55.
243 Shaw ( 2008 ), 934.
244 Matz ( 2005 ), 276-277.
245 Shaw ( 2008 ), 932-933.