How to interpret umbrella clauses in bilateral investment treaties: different perspectives and solutions
International Journal of Public Law and Policy, cilt.9, sa.4, ss.418-431, 2023 (Scopus)
- Yayın Türü: Makale / Tam Makale
- Cilt numarası: 9 Sayı: 4
- Basım Tarihi: 2023
- Doi Numarası: 10.1504/ijplap.2023.134278
- Dergi Adı: International Journal of Public Law and Policy
- Derginin Tarandığı İndeksler: Scopus
- Sayfa Sayıları: ss.418-431
- Anahtar Kelimeler: arbitration, bilateral investment treaties, BITs, investment, investment contracts, parallel effect, umbrella clauses
- Hacettepe Üniversitesi Adresli: Evet
Özet
Umbrella clauses in bilateral investment treaties (BITs) can be named in various ways with differing scopes and effects depending on their texts. It is debatable whether a host state can be held liable based on an umbrella clause in a BIT if it breaches an investment commitment arising from the investment contract. There are two mainstream opinions in this debate: the restrictive and broad approaches. In our opinion, a case-specific approach should be adopted. In each case, the tribunal should act in conformity with the principle of competence-competence. During this analysis, the use of the general rule of interpretation (Art. 31) in the Vienna Convention on the Law of Treaties (VCLT) should be considered.