양자간 투자협정의 우산조항에 관한 연구
A Study on Umbrella Clause in Bilateral Investment Treaty
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Abstract
Umbrella Clause was first introduced as the private drafts of the investment protection treaty in the 1950's and regulated in BIT. Currently, Umbrella Clause has been included in most of BITs. Umbrella Clause was introduced to private drafts of the investment protection treaty in the 1950's and spread from 1959 to many contemporary investment protection treaties. Most of the investment protection treaties have the clause (Umbrella Clause) which promises the observance of commitments entered with the investors of any other contracting party of the treaty. Umbrella clause which has introduced 'pacta sunt servanda clause' of customary international law in BIT clarifies the customary international law to a clearer level. When introduced Umbrella clause, its specification in BIT had related contract claim to a BIT bit dispute. However, there has been various tribunals about this relation. First, the present study looks over the history and role of Umbrella clause and further jurisdiction related to Umbrella clause. Second, it examines the applicable condition of Umbrella clause centering around the arbitration cases of ICSID. It turns out that the application of Umbrella clause depends on the article interpretation of BIT and acta jure imperial. Third, a blanket clause, one of the ISD disbpute settlement clauses of BIT, specifies that a contract dispute can be a target of BIT 중재, and thus it has the power of Umbrella clause. The dispute settlement clause needs to be more clearly specified in terms of predictability because its interpretation is rather flexible. In case you want contract claim to be excluded from the jurisdiction of the BIT arbitration, you don't have to specify Umbrella clause. It is necessary that the dispute solving clause has the definition of dispute which excludes the contract claims, or the contract depends on exclusive form selection clause. Meanwhile, Korea-America FTA divides the dispute item from the dispute settlement clause into the three: breach of FTA obligation, investment authority and breach of state contract. In this case, all legal aspects related to Umbrella clause will be solved.
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