Jurisdictional Scope of Investment Arbitrations

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Jurisdictional Scope of Investment Arbitrations
Ana Stanic British Institute of International
and Comparative Law 8 September 2006
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ISSUES CONCERNING JURISDICTION RATIONE MATERIAE

• 1. Does a breach of contract constitute a
  violation of international law?
• 2. Effect of so-called umbrella clauses in
  expanding the jurisdiction of tribunals and
• The rules of attribution and, in particular,
  whether different rules of attribution apply to
  contract claims and treaty claims.
• Looked at through the prism of two recent BIT
  cases
• BP- Pan American Energy et al v. Argentine
  Republic, ICSID, Decision on Preliminary
  Objection, 27 July 2006
• EnCana Corporation v. Ecuador, UNCITRAL, Award, 3
  February 2006

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SPECTRUM OF UMBRELLA CLAUSES
SGS v. Pakistan Salini v. Jordan SGS v. Philippines Noble Ventures v. Romania CMS v. Argentina BP-PAN American
Either Contracting Party shall constantly guarantee the observance of commitments it has entered into with respect of investments. Each Contracting Party shall create and maintain in its territory a legal framework to guarantee the investors continuity of legal treatment, including the compliance in good faith of all undertakings assumed with regard to each specific investor. Each Contracting Party shall observe any obligation it has assumed with regard to specific investments in its territory by investors of the Other Contracting Party. Each party shall observe any obligations it may have entered into with regards to investments. Each Contracting Party shall observe any obligation it may have entered into with regard to investments.
EFFECT No No Yes Yes Yes in CMS (?) No in BP-PAN American