Umbrella Clauses in Bilateral investement Treaties & Comparison Essay

Umbrella Clauses in isobilateral investement Treaties & Comparison surrounded by ICSID, UNCITRAL and ICC - Essay ExamplePut another way, the main question is whether or not the umbrella clause renders a breach of an investment postulate a treaty claim.3 A retread of previous arbitration decisions on the issue do produced mixed results. It would appear that with contradictory rulings on the matter, umbrella clauses chamberpot sometimes be effective for resolving disputes arising out of investment contracts concluded beneath the function of BITs. Wong argues however that, contradictory rulings only serve to nullify umbrella contracts and thus render them ineffective as a means of resolving disputes arising out of an investment contract.4 This paper evaluates umbrella clauses with a view to determine whether or not a rule of law can be identified in the command pointing to the when and how umbrella clauses can be used effectively to resolve disputes arising out of an investment contract. Case integrity Consistency in arbitration decisions is an allusive concept due to the fact that arbitration plug-ins are create specifically for a event. As a result, panels do not sit consistently and therefore they do not have the persistent experience and consistency that court appointed judges may have and usually accumulate. Moreover, international arbitration does not have a hierarchal structure in which appeals can be heard by a higher arbitration panel for the purpose of establishing or explain a rule of law. In the meantime, arbitration decisions are usually heard in private, and where they are promulgated and shared, publication is delayed and highly selective. For example, the International Chamber of Commerce (ICC) only publishes 12% of its theatrical roles and even then, the case is only reported three years after the award is given (Guillaume, 2011).5 Therefore in evaluating case law in international commercial arbitration, it is difficult to know with any degree of reasonable certainty, what the real(a) jurisprudence is on a particular healthy matter. The cases that are available reveal only contain jurisprudence and any evaluation is therefore qualified by the fact, that a complete analysis of the legal rule is not possible. This analysis of the effectiveness of the umbrella clause for the resolution of disputes arising under an investment contract can only be determined on the basis of the available published arbitration cases. The offshoot case of note is the 2003 case of SGS Societe Generale de Surveillance S.A. v Islamic Republic of Pakistan. This case involved a dispute which arose under a contract between Pakistan and Swiss company for the latters function as a shipment inspection agency. Pakistan terminated the contract later on and the Swiss company, relying on the BIT between Switzerland and Pakistan submitted the matter to arbitration and claimed that in addition to breaching the terms of the contract, Pakistan a lso violated its obligations under the BIT and especially the umbrella clause. Pakistan argued however that the dispute arose under an investment contract and therefore the panel did not have jurisdiction over the matter.6 The arbitral panel ruled that the investment contract between Pakistan and the Swiss company predated the BIT and the applicability of the umbrella clause must be viewed in that light. In this regard, unless there was clear