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Contracting Party, and a “substantive approach” to the respect clause: “ Each contacting
Party shall observe any other obligation in writing it has assumed with regard to investments
in its territory by investors of another Contracting Party. Disputes arising from such
obligations shall only be settled under the terms of the contracts underlying the obligations ”.8
The U.S. Model BIT of 1983 contains an umbrella clause providing that “[e]
ach Party shall observe any obligation it may have entered into with regard to investors or
nationals or companies of the other Party.” Subsequent U.S. Model BITs published in
1984 and 1987 include similarly worded umbrella clauses.9 Commentators analyzing
these umbrella clauses agree on their effects, namely that such a clause “raises to a
treaty issue any attempt by a BIT partner to invalidate a contract by changes in
domestic law or otherwise…[such that] a breach of contract constitutes a breach of
treaty.” Article 8(1) of the US Model BIT 2012 provides that “Neither Party may,
in connection with the establishment, acquisition, expansion, management, conduct,
operation, or sale or other disposition of an investment of an investor of a Party or of a
non-Party in its territory, impose or enforce any requirement or enforce any commitment
or undertaking (a)-(h) so as to afford protection on the basis of nationality to its own
investors or investments or to technology of the Party or of persons of the Party.“, and
in addition, Article 8(2) provides that “Neither Party may condition the receipt or
continued receipt of an advantage, in connection with the establishment, acquisition,
expansion, management, conduct, operation, or sale or other disposition of an investment
in its territory of an investor of a Party or of a non-Party, on compliance with any
requirement (a)-(d), and Article 8(4) goes on to clarify that “For greater certainty,
paragraphs 1 and 2 do not apply to any commitment, undertaking, or requirement other
than those set out in those paragraphs.“, and finally, Article 8(5) states that “This Article
does not preclude enforcement of any commitment, undertaking, or requirement between
private parties, where a Party did not impose or require the commitment, undertaking,
or requirement.“10
An example of an attempt to extend the use of the umbrella clause goes back to
1967 and it was seen when the OECD expressed that extention in its proposal of
the (OECD) Draft Convention on the Protection of Foreign Property. Although the
draft OECD did not met its purpose, the idea of the OECD Council of an umbrella
clause was supported in its 150th meeting, and it led to encouraging Member States
to incorporation of the umbrella clause into bilateral agreements. The proposal in
Article 2 specifically stated that “[ a]ny party must always ensure compliance with the
commitments they [are undertaking] in relation to the property of the citizens of any other
Contracting Party.”11
8 OECD, Working papers on International Investments, No 2006/3, Interpretation of the Umbrella
Clause in Investment Agreements, October 2006, page 5.
9 See 1984 U.S. Model BIT art. II(2), Feb. 24, 1984, available at:
files/ECM_PRO_066871.pdf.
10
11 SALACUSE, Jeswald W. The Law of Investment Treaties. 1. vydání. New York: Oxford University Press,
2010. 517 s. ISBN 978-0-19-920605-6. Str. 277: „Each Party shall at all times ensure the observance