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VOJTĚCH TRAPL CYIL 5 ȍ2014Ȏ
phrase ‘shall observe’ is imperative and categorical. ‘Any’ obligations is capacious
[sic ] and quite broad; it means not only obligations of a certain type but ‘any’, ie.
all, obligations entered into with regard to investments of investors of the other
Contracting Party.44 The immediate, operative effects of Article 3.5 are, according
to the Arbitral Tribunal, two in number: the first is that Eureko’s contractual
arrangements with the Government of Poland were subject to the jurisdiction of
the Tribunal that reinforced the jurisdictional conclusions earlier reached in the
Award, and the second is that breaches by Poland of its obligations under the SPA
and its First Addendum, while not breaches of Articles 3.1 and 5 of the Treaty, could
nevertheless be breaches of Article 3.5 of the Treaty, since they transgressed Poland’s
Treaty commitment to “observe any obligations it may have entered into” with regard
to Eureko’ s investments.45 The Tribunal concluded that the actions and inactions of
the Government of Poland which were in breach of Poland’s obligations under the
Treaty – those that have been held to be unfair and inequitable and expropriatory
in effect – were also in breach of its commitment under Article 3.5 of the Treaty to
“observe any obligations it may have entered into with regards to investments of
investors” of the Netherlands.”
The same conclusion that the umbrella clause elevates all obligations was
not, however, held in Noble Ventures, Inc. v. Romania,46 even though the umbrella
clause in the United States-Romania BIT provides that “[e]ach Party shall observe
any obligation it may have entered into with regard to investments. ”47 The Arbitral
Tribunal concluded that the wording of the umbrella clause was “a clear reference to
investment contracts”,48 and it abstained from “express[ing] any definitive conclusion
as to whether...[the umbrella clause] perfectly assimilates to a breach of the BIT or
the breach by the host State of any contractual obligation,” on the ground that its
conclusions in that case would not be affected by the resolution of that question.49
In Sempra Energy International v. Argentina 50 the Arbitral Tribunal noted that
the dispute before it arose from the manner in which “the violation of contractual
commitments with the licensees… impacts the rights the investor claims to have
in the light of the provisions of the treaty and the guarantees on the basis of which
it made the protected investment.” It then went on to hold that it had jurisdiction
over the investor’s claim since it was “founded on both the contract and the [BIT]”
and “[t]hat the [BIT] also includes the specific guarantee of a general ‘umbrella
clause’… involving the obligation to observe contractual commitments concerning
the investment, [and] creates an even closer link between the contract, the context
44 Ibid 246 in note 4.
45 Ibid 250 at note 4.
46 Noble Ventures, Inc. v. Romania, Award, ICSID (W. Bank) Case No. ARB/01/11 (2005), available at
47 Ibid. at 46.
48 Ibid. at 51.
49 Ibid. at 61.
50 See Sempra Energy International v. The Argentine Republic, ICSID Case No. ARB/02/16.