Originally from Investment Treaty Arbitration and International Law Volume 7

DR. WEILER: I think we’re ready to begin our next session. As Ian mentioned earlier, I’m Todd Weiler. This panel is an interesting panel, and I’m going to take credit for the title. I’m going to take credit for it because I like it, “Is it fair and equitable to be under the umbrella?”

So, about these umbrella clauses. Well, what’s interesting about this, just a quick introduction to our thinking about it, some umbrella clauses were obviously a topic actually in our very first session, or Juris 1, and they remain topical today; and, in some ways, I think that they’re greeted now with as much discomfort by tribunals as expropriation clauses. And, accordingly, I think not unlike what we’ve seen with expropriation clauses and FET claims when they’re both brought, we’re seeing tribunals that seem to seek shade in the indeterminacy of an FET clause as opposed to the bright lights of an umbrella clause.

I think it’s important to note that this topic goes right really to the principal heart of the matter, and that principle is good faith. So, as the Tecmed Tribunal notoriously noted, good faith lies at the root of FET, giving rise both to theories of reliance as well as abuse of rights. And I think one need not say much more about the umbrella clause than pacta sunt servanda. So, clearly, they both have their root in good faith, and I guess as a result our question is: Do we want to have a teleological approach to investment treaty interpretation or do we want to have a literalist and positivist approach to treaty interpretation?

With that, I will hand over to Michael.

MR. NOLAN: Well, Todd, thank you very much. Welcome, everyone, to Session 2. The heading for this session is “Energy contracts and BITs: Is it fair and equitable to be under the umbrella?” There are a lot of concepts in this heading; it is a really interesting, challenging and, I think, dynamic topic.