Research On Umbrella Clause In Bilateral Investment Agreement

Since China signed a bilateral investment agreement with Sweden in 1982,it has signed bilateral investment agreements with 104 countries and regions.About 40 per cent of the bilateral investment deals signed include umbrella clauses.Umbrella terms the purpose is to protect the interests of investors constraints,the power of the host country,but because of this,umbrella clause in the presence of abusive to a certain extent,many of the host country because of the arbitration tribunal for expanding interpretation of the umbrella terms for its exercise of investment arbitration jurisdiction.China is also suffering,considering China’s investment position shift and put forward the concept of human destiny community,also in response to the umbrella clause in bilateral investment treaties in China leads the litigation-related frequently causing treaty obligations,whether to continue in the bilateral investment treaties in China umbrella clause should be cautious.This article first from the effectiveness of umbrella clause,by understanding the arbitration tribunal,academia,and parties to willing to accepted the umbrella clause exist to rise the contractual obligations for the effectiveness of the treaty obligations,secondly by the arbitration tribunal to take on umbrella clause interpretation method,think to take harmonious explain to perfect the applicability of umbrella clause is a treaty text can coordinate and balance the interests of the investors and the host country,again by clear umbrella terms and the relationship between investment disputes jurisdiction,it is thought that the nature of the umbrella clause is just a relief terms,in the case of investment dispute,should be out in the terms and conditions apply.Finally through the analysis of umbrella clause in bilateral investment treaties in China,think the umbrella clause and investment arbitration jurisdiction is belong to the category of theory and practical use of the two,not admit that the rise of umbrella clause effect shall be subject to jurisdiction of the international investment arbitration,shouldfollow the provisions of special is better than that of general priority of investment dispute settlement in the contract provisions shall be applicable.Sign a bilateral investment agreements so that the future is still can be incorporated into the terms of the umbrella,but for the parties intent to express more clear and better understanding of the decision of the arbitration tribunal,the exceptions should be taken to limit the official form of negative listing and urged the international arbitration tribunal ruling authority of precedent system consistency.