Research On Umbrella Clause In Bilateral Investment Treaties

Umbrella clause, which is widely concluded in many BITs, is applied to prescribe that each contracting party shall observe certain commitments it has made to investors of the other contracting party. Lately, there are a series of arbitral cases regarding the application of umbrella clause in ICSID. However, tribunals of these cases adopted dramatically different approaches in the interpretation of umbrella clause and came into adverse conclusions. There are more and more uncertainties about the application of umbrella clause, which also invoked closer attention of the academic community. Some BITs which China has concluded with other foreign countries also included umbrella clause, which means that there is a good chance for China to be confronted with the risks of the vague effect of umbrella clause in the settlement of the investor-state conflicts. This thesis analyses and compares the two interpretative approaches for the application of umbrella clause provided by ICSID tribunals and the academic community, in the end gives some suggestions to the practice of China's BITs and settlement for foreign-related investment conflicts.The thesis consists of: the introduction, three chapters, and the epilogue.Chapter 1 is about the origins and the historical development of umbrella clause, as well as the analysis of the language and differences of umbrella clause.Chapter 2 is about the two interpretative approaches in the application of umbrella clause put forward by ICSID tribunals and the academic community--restrictive approach and wide approach, and the allegations and development of these two interpretative approaches in arbitration practice.Chapter 3 is mainly about the comparison and comments on the above two interpretative approaches. I also put forward a more appropriate approach in the interpretation of umbrella clause, which lead to some apocalypses for China's practice of BITs and umbrella clause.