On The Effectiveness Of Umbrella Clauses In Investment Treaties

In recent years,research on umbrella clauses has been in full swing,but the relationship between different research perspectives has not been clarified or pointed out.The analysis shows that whether the umbrella clause can be used as the basis of the jurisdiction of the investment arbitration tribunal is the main part of its effectiveness,and the rest are the specific aspects involved in the main part.By studying the historical background of umbrella clauses,analyzing ICSID arbitration cases,comprehensively considering the rules of treaty interpretation,the balance of interests of investors and the host country,and using relevant theories of international law,it is concluded that umbrella clauses can be used as the basis for the jurisdiction of investment arbitration tribunals In principle,it is not affected by the exclusive dispute settlement clause in the investment contract;although it is reasonable to divide the investment contract into a national contract and a commercial contract,it is not necessarily legally justified.The arbitration tribunal is not required to deal with the case.To characterize the contract as a whole,but to focus on the host country's exercise of public power when it breaches the contract;in principle,the domestic law of the host country should be applied to review the request made under the umbrella clause,but the application of international law should be supplemented.Based on the actual situation of my country's current “Belt and Road” and foreign investment,it is still necessary to include umbrella clauses in investment treaties,but there can be flexibility in the adoption of specific forms of umbrella clauses.In investment disputes,the actual situation of investment arbitration can be combined to put forward a point of view that suits one's own interests.