Umbrella Arbitration Agreement

Although it is not known whether there are other investment agreements that have not yet been made public, the trend seems clear and can be stated by the 2007 commentaries on the Norwegian draft ILO model: “The starting point for the development of a new model agreement was that the arbitral tribunal could only take into account alleged violations of the norms of the intergovernmental investment agreement”. This comment reflects the main concern of roof clauses: the difficulty of determining whether they can act as a “bridge” to introduce rights arising from contractual relations in the area of the protection of investment contracts. This concern is reflected in the diversity of forms and scenarios in which the application of Umbrella clauses is a theme: Umbrella agreements give the parties room for manoeuvre to adapt to changing terms and conditions. In Noble Ventures v. Romania20, the General Court held that, even if the contract between the applicant and the Romanian State property fund, which is his own legal person, had been concluded, the conciliation clause applied to the contract, since the Romanian Government could be held liable for the infringement of a fund with public authorities. On the contrary, in Impregilo v. Pakistan,21 it was concluded that the claimant could not benefit from the ILO umbrella clause signed between Italy and Pakistan, since the contract was not concluded directly with Pakistan, but with a separate entity, the Pakistan Water and Power Development Authority.22