TAILIEUCHUNG - International Investment Law: Understanding Concepts And Tracking Innovations, p2

investment agreements between host countries and foreign investors. The meaning of the umbrella clauses is one of the most controversial issues with which international arbitral tribunals have been recently confronted with while adjudicating investment disputes brought before them. Through a wide review of the specific textual provisions included in investment agreements, | ISBN 978-92-64-04202-5 International Investment Law Understanding Concepts and Tracking Innovations OECD 2008 Chapter 2 Interpretation of the Umbrella Clause in Investment Agreements Umbrella clauses have become a regular feature of international investment agreements and have been included to provide additional protection to investors by covering the contractual obligations in investment agreements between host countries and foreign investors. The meaning of the umbrella clauses is one of the most controversial issues with which international arbitral tribunals have been recently confronted with while adjudicating investment disputes brought before them. Through a wide review of the specific textual provisions included in investment agreements the survey seeks to serve as guidance for negotiators by clarifying the implications deriving from the choice of different drafting options. The paper further examines the interpretation of the clause given by arbitral tribunals on a case-by-case basis. Caution is recommended in trying to draw any conclusions on the interpretation of the clause since the jurisprudence in this field is constantly evolving. This paper was prepared by Katia Yannaca-Small Legal Advisor Investment Division Directorate for Financial and Enterprise Affairs OECD. Thanks are due to Catriona Paterson a consultant to the Investment Division for research input. The paper as a factual survey does not necessarily reflect the views of the OECD or those of its member governments. It cannot be construed as prejudging ongoing or future negotiations or disputes pertaining to international investment agreements. 101 2. INTERPRETATION OF THE UMBRELLA CLAUSE IN INVESTMENT AGREEMENTS Introduction An increasing number of investment treaty arbitrations involve not only the treaties themselves but also investor-state contracts. The extent of subject matter rationae materiae jurisdiction is not uniform under Bilateral Investment Treaties BITs . Some BITs cover only .

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