Umbrella Terms Of The Applicable Conflict And Resolution

With the deepening of economic globalization, international investment relations increasingly close relationship between the growing need for international investment a unified law to regulate international investment, but the multilateral negotiations on the development of international investment law delay failed to reach consensus, by the early Havana Charter began to develop to the OECD drafted to develop a "multilateral investment agreement", to the current Singapore issues, the development of the negotiation process received much international investment law hindered the development process is very slow, so the international bilateral investment treaties (hereinafter " BIT ") has become the primary means to regulate the current international investment relations. After World War â…¡, developed surge in foreign investment, bilateral investment agreements to develop, and thereafter until the early 1990s, in order to stabilize the growth of the number. The late 1990s the rapid development of bilateral investment agreements to increase geometrically pace, official data showed, as of 2014, worldwide there were already more than 2,900 bilateral investment treaties. While this is widely used, and disputes involving bilateral investment agreements are continuously occur, including the dispute umbrella clause.Umbrella clause first appeared in the bilateral investment agreements in 1959 for restricting the other Contracting State to comply with commitments made by the State party investors, after which the terms will be widely used in various countries in the bilateral investment agreements. Although the existence of the umbrella clause makes Contracting Party to the other Contracting Party to comply with the commitments made to produce regulatory role, however, in the face of controversial issues, the umbrella can be used in terms of investment contracts signed between foreign investors and host countries, and can No contract will rise to the dispute dispute treaty, disaster these questions are ambiguous. Recalling previous cases, for such disputes, even ICSID ruling center gives also very different, sometimes completely at odds, the effectiveness of the umbrella clause of the most controversial.Our deepening of reform and opening, the signing of the bilateral investment agreements also added a lot of umbrella clause, but the face of the umbrella clause effectiveness are unclear, there is a big risk of international investment relations. Therefore, under the umbrella terms of the actual situation is more and more national applications, in order to balance the interests of the relationship between the host country and investors, seeking a most reasonable interpretation is essential.With the development of international investment, investment disputes are increasing. Contracting bilateral investment agreements by the two sides in the dispute agreed to the International Centre for Settlement of Investment Disputes treatment centers can hope that a fair and just solution to the disputed issue, but in practice affected by the arbitral tribunal in dealing with various aspects of the dispute is difficult to very good balance the interests of both sides. In recent years, the balance between investors and the interests of the host country has become one of the hot issues of concern of the international community to resolve this issue will start from the norm, and improve the relevant provisions of the bilateral investment agreements in respect. This will be the angle of the umbrella clause in the bilateral investment agreements analysis and discussion of disputes between investors and host countries to solve the problem.Besides the introduction and conclusion, the article is divided into three parts. Respectively:The first part outlines the basic concepts of the umbrella clause. Umbrella clause exists not only in bilateral investment agreements, but also in a multilateral investment agreement, the paper studies mainly bilateral investment agreements umbrella clause. In this chapter, the author introduces the umbrella terms of its origin and history issues, and then describes the basic concepts of umbrella terms, including the umbrella clause meaning, characteristics, presentation, and finally from the Calvo doctrine and diplomatic protection restrictionism start, umbrella terms for the existing shortcomings discussed the umbrella clause existence value problems.The second part describes the conflicts generated in the umbrella clause applicable process. Although the presence of umbrella terms were necessary, but in practice its causes and interests of the game so that the parties expressed their own umbrella clause worthy of discussion in many ways, which is mainly manifested in three questions:First, is the umbrella policy. The scope, the author here briefly before the scope of the umbrella clause conflict, and analyzes the reasons for its scope of application conflicts. Second is the issue of conflict of jurisdiction umbrella clause, the author in this section describes three main umbrella clause of jurisdiction. Finally, to explain the conflict umbrella terms, in this part, the author reviews the ICSID tribunal relates to a classic case of an umbrella clause, describes three methods for the interpretation of the umbrella clause:restrictive interpretation, be construed broadly party and Relative Relative restrictive interpretation, but explained the different effects of different methods of interpretation will be capital-importing countries, capital-exporting countries produce.The third part is the author for specific ideas to solve conflicts umbrella terms apply. In this section, the author conflict against the umbrella clause applicable generated in practice, were standing on the host country, the position of foreign investors, considering the interests of all parties to resolve the conflict of umbrella clauses proposed three aspects suggest.