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Part III Guide to Key Jurisdictional Issues, 16 The Umbrella Clause: Is the Umbrella Closing?

Katia Yannaca-Small

From: Arbitration Under International Investment Agreements: A Guide to the Key Issues (2nd Edition)

Edited By: Katia Yannaca-Small

From: Investment Claims (http://oxia.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. date: 23 September 2023

Umbrella clause

‘Umbrella clauses’ are inserted in treaties to provide additional protection to investors and are directed at covering investment agreements that host countries frequently conclude with foreign investors. Inclusion of umbrella clauses in investment treaties provides a mechanism to make host States’ promises ‘enforceable’ and comes as an additional protection of investor-state contracts, which raises the controversial issue of whether the umbrella clause seeks to elevate contractual breaches to treaty breaches. For a better understanding of the clause, this chapter (i) gives an overview of its history; (ii) briefly discusses the significance of the language included in a number of bilateral investment treaties; and (iii) looks at the effect, scope and conditions of application of the umbrella clause as interpreted by arbitral tribunals.

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