Umbrella Clauses and Transfer Provisions in the (Invisible) EU Model BIT

in The Journal of World Investment & Trade
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The draft Investment Chapter of the Comprehensive Economic and Trade Agreement (ceta) between the European Union (eu) and Canada includes an umbrella clause, on eu’s proposal. Nevertheless, the inclusion in the final text of such a clause appears to be uncertain. Furthermore, the wording of the umbrella clause, proposed by the eu, fails to address all uncertainties regarding the effects and scope of application of umbrella clauses still existing in jurisprudence. Conversely, the inclusion in the draft Investment Chapter of a transfer provision, accompanied with safeguard provisions in case of serious balance-of-payments difficulties and external financial difficulties, does not seem to be a contested issue between the Member States and Canada. A new development at the eu level might make investment protection matters more complicated: following the opening of the negotiation on a free trade agreement with the us, some Member States (such as Germany) oppose investment arbitration tout court at least in the prospective eu-us ceta.

The Journal of World Investment & Trade

Law • Economics • Politics




European Commission, supra note 3, p. 8 and Council of the European Union, supra note 3, para. 14, respectively.


European Commission, supra note 3, p. 6.


Schill, supra note 17, pp. 16–17; Anna De Luca, ‘L’arbitrato internazionale treaty-based sugli investimenti esteri’ (2007) XXIII Comunicazioni e Studi 979 1018, 1044.


Schill, supra note 17, p. 93; De Luca, supra note 21, pp. 1044–1045.


Schill, supra note 17, p. 95.


Crawford, supra note 35, p. 363.


Council of the European Union, supra note 3, para. 14.


European Parliament, supra note 63, paras. 6, 17, 23 and 25. European Investment Agreements will contain provisions aimed at protecting the right of Contracting Parties to regulate as well as general and specific exceptions. See De Luca, supra note 64, pp. 74–78.


European Parliament, supra note 63, para. 31.


Dolzer and Stevens, supra note 12, p. 85.


Waibel, supra note 75, p. 517; Viterbo, supra note 81, pp. 268–269; and Sacerdoti, supra note 13, pp. 362–363, observing in pre-investment treaty practice times that most bits were mute on the subject.


Sacerdoti, supra note 13, p. 363 concluding “that such a bit does not exclude the applicability of a restriction adopted in conformity with the multilateral treaty provision, save if the bit contains a specific clause to be considered as lex specialis.”


Waibel, supra note 75, p. 517.


Sacerdoti, supra note 86, p. 364.


Waibel, supra note 75, p. 517.


Energy Charter Treaty, supra note 9.


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