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Contracts, Treaties and Umbrella Clauses: Some Jurisdictional Issues in International Investment Arbitration

Annals of the Faculty of Law in Belgrade - Belgrade Law Review, 4/2012

19 Pages Posted: 30 Jul 2012  

Velimir Zivkovic

London School of Economics - Law Department; Institute of Comparative Law, Belgrade

Date Written: December 15, 2011

Abstract

Investor-State contracts are an important instrument for realizing foreign investments. The mixture of public and private law present in these contracts raises a number of interesting legal questions. This article focuses on certain jurisdictional issues which are of high importance for both investors and host States in international investment arbitration.

Two main issues are discussed. The first is the relationship between the breaches of investor-State contract as opposed to the breaches of the bilateral investment treaty, and the impact this has on establishing arbitral jurisdiction. The second issue discussed are the “umbrella” clauses and the proper understanding of their content. Both topics are mainly analyzed in the context of ICSID, but conclusions drawn can be applied to other forms of investment dispute settlement.

The article concludes with proposed guidelines on how to overcome the existing divergence in jurisprudence which is detrimental to legal certainty in this area of law.

Keywords: investor-state contracts, investment arbitration, ICSID, umbrella clauses

Suggested Citation

Zivkovic, Velimir, Contracts, Treaties and Umbrella Clauses: Some Jurisdictional Issues in International Investment Arbitration (December 15, 2011). Annals of the Faculty of Law in Belgrade - Belgrade Law Review, 4/2012. Available at SSRN: https://ssrn.com/abstract=2119861

Velimir Zivkovic (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

Institute of Comparative Law, Belgrade ( email )

Terazije 41
Belgrade, 11000
Republic of Serbia

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