Bilateral Investment Treaties: Breach of Treaty or Contract

 

The face of international investment has changed radically thanks to the proliferation of BITs in the past decade. This has led to foreign investment disputes increasingly being resolved through dispute resolution procedure. But the increase in arbitration to resolve investment related disputes hasn’t been successful in resolving some of the issues arising from BITs. Rather some of the recent decision in international investment has exposed some of the underlying problem between the theoretical aspect of the bit and the practical aspect. One of the major issues creating a lot of controversy is related to interpreting that umbrella clause in different BITs and the conflict between breach of treaty v breach of contract. This clause, found in most of the BITs requires that each contracting party must honour and observe all obligations that have been entered with the investor from the other contracting state. This clause basically helps the investor to raise a contractual claim under the domestic law to a treaty claim under the BITs. According to Jarrod Wong “the application of such clause results in the international arbitration tribunal constituted under the BIT (the “BIT tribunal”) to take jurisdiction over breach-of-contract claims since the umbrella clause raises the breach of contract to a treaty level breach which automatically gives jurisdiction to the tribunal”. To put it in the simplest way, it means that the investor can now ask the international investment tribunal to redress the breach of the investment contact by elevating it to the status of breach of the investment treat by way of international arbitration.

Vivendi, SGS v. Pakistan, and SGS v. Philippines are the three cases decided by International Centre for Settlement of Investment Disputes (ICSID) tribunal that have fuelled the controversy relating to umbrella clause and additionally have discussed the relationship between a breach of contract and breach of treaty.  The above cases have shown how international arbitrators are inconsistent in their approach towards interpreting the umbrella clause in the governing BITs. This has led to a conflict on how the two-principal aspect of international investment practice work in consonance with each other. The two-principal aspect constitute of investment contract which is validated by the hosts states domestic law and the international investment agreement which are mostly the BITs. If this underlying uncertainty isn’t resolved soon, then the growth and favourability of international investment stands threatened. Since overlaps between contract and treaty claims are expected to arise with increased frequency in the interim period (as a result of the ever-increasing scope of BIT coverage). This essay will first analyse the relationship between a contractual claim and treaty claim when both arise from same set of facts (a single action of the host state giving rise to the breach). The analysis will be done by discussing how different tribunal have assisted in developing this jurisprudence as it stands today and if there are any fault and changes required in the jurisprudence. The second part of the essay will deal the umbrella clause jurisprudence by focusing and dissecting the decision and reasoning of the tribunal in the SGS decision that have shaped the concept as it is today. At the end the conclusion will involve the analysis and recommendation relating to the jurisprudence discussed below and will also provide an analysis of the decisions that will be referred to.

The parties in an investment transaction receive their substantive and procedural rights from the combination of different norm starting from the investment contract itself that is entered between the foreign investor and the local government which gives rise to private right and obligation. Then there is the domestic law of the host state that govern and protects the substantial rights and obligation of the party. These domestic laws fill in the normative gaps that arise in the contract, those domestic laws are mostly in the form of tax laws, environmental law et al. Domestic laws create substantive and procedural right and obligation in addition to those undertaken through the contract. Finally, Bilateral Investment Treaties (BITs) and Multilateral Investment Treaties (MITs) also govern many international foreign investments that required the host state to adhere to obligation by a fixed set of international law. A combination of the above norms provides for a suitable investment environment for the foreign investor protecting and guaranteeing a return on the investment made. The above set of norm give rise to different rights and there is claim under all the three set of norm and at time those claims can arise from a single set of facts. All the three norms work simultaneously to protect and observe all the right and obligation of the parties. As all the norm work together at times both contractual and treat claims can come from a single set of facts, that fact being the act of the government which can breach the investment contract and the investment treaty at the same time. The question that arises here is that if single set of facts gives rise to both treaty and contractual claims then will the tribunal have jurisdiction or will the court have jurisdiction over the dispute? This jurisprudence stands clarified that the tribunal will have jurisdiction over the treaty claims and the local court or arbitrator will have jurisdiction over contractual claims by international tribunal time and again, the most recent being the famous SGS decisions and it was first dealt with by the Lanco v Argentina Tribunal.

This ICSID jurisprudence established in Lanco was based on the forum selection clause contained in the concession agreement which was in favour of domestic courts in Argentina. Argentina argued that because of the clause the tribunal has no jurisdiction over treaty claims as the consent in the contract by way of the forum selection clause over rides the “general consent” given in the BIT for ICSID arbitration. The tribunal however rejected the argument stating that United States-Argentina BIT allows the investor to submit the dispute to ICSID for treaty based claims and the consent is an expressed consent and cannot in any case be overridden by the consent given in the contract.

The Annulment Committee in the Vivendi case affirmed the Vivindi Tribunal’s decision on the issue relating to forum selection clause which was in line with the Lanco decision. The tribunal basically stated that the ICSID tribunal will never be deprived of jurisdiction over a treaty claim, including the case of treaty claims arising out of the contract even when there is a forum selection clause in the contract. The tribunal in the Vivindi case stated that in no way the forum selection clause would be:

“deemed to prevent the investor from proceeding under the ICSID Convention against the Argentine Republic on a claim charging the Argentine Republic with a violation of the Argentine-French BIT”.

The forum selection clause was again a point of contention between the parties in both the SGS dispute and the tribunals decisions was in line with the prior jurisprudence. While discussing the SGS decisions one important point that is mostly not noted is that in both the disputes the tribunal asserted jurisdiction over the treaty claim which arose directly from the investment agreement. This cemented the ICSID jurisprudence that was established in earlier cases, both treaty claims and contractual claims can arise from the same set of facts. It can also be stated that, notwithstanding any forum selection clause, in a matter of treaty violation an international tribunal will always have jurisdiction over the treaty based claim. The tribunal in SGS v Pakistan cited the Vivindi annulment decision where the committee stated:

“[W] here the ‘fundamental basis of the claim’ is a treaty laying down an independent standard by which the conduct of the parties is to be judged, the existence of an exclusive jurisdiction clause in a contract between the claimant and the respondent state … cannot operate as a bar to the application of the treaty standard. At most, it might be relevant-as municipal law will often be relevant-in assessing whether there has been a breach of the treaty.”

The tribunal also particularly stated that it will deal with the violation related to the treaty only and there will be no jurisdictional overlap with the PSI arbitrator as the PSI arbitrator will be dealing with contractual violation even though both the dispute arise from the same set of facts. It must also be noted that the tribunal in SGS v Philippines also had to deal with similar type of forum selection clause and its decision was again in line with earlier jurisprudence. The SGS tribunals were consistent in their decision on forum selection clause in an underlying contract and also followed the jurisprudence that was established.

The effect is that once treaty based claims are found and framed then the treaty based tribunal have the power to adjudicate them and no other forum selection clause can abridge that right. This authority will in no condition be abdicated on the reason that they claim are linked or arise from claims related to contracts. No forum selection clause in an underlying contract or a parallel proceeding relating to the claims can rob or stop the treaty based tribunal from deciding the treaty based claim as clear differentiation can be established between treaty based claims and contractual claims even if they arise from the same set of facts.

We saw that there is a clear differentiation between a tribunal asserting jurisdiction on treaty claims when the dispute arises from the same set of fact related to an underlying investment contract. But the umbrella clause aims to do just the opposite by equating contract breaches with treaty breaches. SGS v Pakistan was the first case to deal with the umbrella clause in its practical aspect back in 2003 and then this question was again dealt with by SGS v Philippines. While trying to deal with the question of umbrella clause the SGS decisions left us with conflicting and confusing interpretation of the umbrella clause. The confusion can be attributed to how the SGS decisions lie on the opposite end of the spectrum, while SGS v. Pakistan determined that the BIT tribunal does not have any jurisdiction over contractual claims on the ground (that umbrella clause is very wide in its scope and there was no intention to cover contractual dispute), conversely SGS v. Philippines held that a BIT tribunal in fact has such jurisdiction (as the umbrella clause is to be applied as it is) but still held that it should not exercise this jurisdiction where the investment agreement contains an exclusive forum selection clause designating a specific but different forum from BIT tribunal for resolving disputes arising under the contract.

The United Nations Centre on Transnational Corporations has stated that the presence of an umbrella clause in a treaty:

“… makes the respect of such contracts [between the host State and the investor] … an obligation under the treaty. Thus, the breach of such a contract by the host State would engage its responsibility under the agreement and-unless direct dispute settlement procedures come into play-entitle the home State to exercise diplomatic protection of the investor.”

The inclusion of umbrella clause has widened the definition of a arbitrable dispute and over the time tribunal have found and concluded that jurisdiction of a tribunal is no more restricted to claims of violation of substantive provision of BIT. It may be noted that the clauses in BITs are not yet tested as they have been drafted keeping in mind the future requirement for an favourable investment and they are put to test only when any dispute arises and they are placed before an arbitral tribunal. Two of the recent decision relates to the interpretation of the umbrella clause discussed below shows what challenges can the umbrella clause being with them.

The SGS Reasoning’s

The SGS decision are the two most recent and important decision on umbrella clause. While SGS v Pakistan took a very restrictive approach in interpreting the clause over contractual claims, SGS v Philippines made a broad interpretation of the umbrella clause by covering both treaty claims and contractual claims.

SGS v Pakistan was faced with an umbrella clause, which according to the tribunal was very broad in its scope. The tribunal went on to state that the clause is so broad that it can’t be construed to cover contractual claims (compromissory clause article 9 of BIT only intended to cover treaty claims not contractual claims).  The tribunal also found that the umbrella clause in article 11 of the BIT did not transfer SGS contractual claims in to BIT claim. The tribunal stated that a straight forward reading and literal interpretation of the clause encompasses the contractual claims, but the tribunal was concerned that it will convert every contractual claim into a breach of BIT claim and would open a floodgate of cases. The tribunal was very explicit in stating that they don’t intent the clause to be so wide in its scope and assumed that the parties also never intended to do so. Giving effect to the clause would be exceeding what the contracting parties intended and the tribunal is willing to accept. So eventually the tribunal took jurisdiction over treaty claim only and allowed to PSI arbitrator to resolve the contractual disputes.

SGS v Philippines was faced with the decision of the earlier SGS v Pakistan tribunal which came before some months only. The tribunal felt that the SGS v Pakistan tribunal didn’t give the full and proper effect to the umbrella clause stating that “the clause doesn’t change the applicable  law on the contract from Philippines law to international. The applicable law remains the domestic law only, the umbrella clause makes sure that the host state honours the obligation it has undertaken under the contract – in effect, the clause help to secure the performance of the contract obligation by the host state in relation to international investment protection law.” Surprisingly after giving a broad interpretation to the clause the tribunal suspended the proceedings asking the claimant to get the judgement from the domestic court first and then come back to the tribunal if the claimant finds that the judgment is unsatisfactory or the host state doesn’t comply with the judgment. The tribunal felt that they have jurisdiction over the dispute, but it is not yet admissible as there is another forum selection clause closer to the contract and if that fail then the tribunal can take jurisdiction. Basically, speaking the tribunal stated that they have jurisdiction over the matter but it will become admission when the forum selection clause doesn’t provide justice it will be admissible as it will get elevated to treat violation under the doctrine of “denial of justice” under international law.

It’s clear by now that both tribunals decided not to decide on the contractual claim. As Thomas W Walde states, “this happened because both the tribunal feared that it will open a floodgate. The SGS v Pakistan was much sincere and clearly vocal about the fear whereas the SGS v Philippines tribunal wrapped it in a more technical consideration”.

In the end, we can see that both the SGS decision have left the concept of Umbrella clause on a very uneven ground by reaching at two different conclusions. In my opinion an umbrella clause provides much more confidence than a forum selection clause. The reason umbrella clause is preferred because it provides for the disputes to be resolved by a neutral tribunal as both the parties have equal say in the selection and appointment of the tribunals. whereas the forum selection clause requires that the dispute be resolved by a domestic court where the host state has an interest. This doesn’t help to instil any confidence of the foreign investor in the domestic forum. The SGS v Pakistan tribunal didn’t take into consideration the entire jurisprudence of international law, had it vested far enough it would have realised that the jurisprudence states that contracts of aliens with a government are protected under international law, but only if there are not “merely commercial”, but have an element of governmental powers and prerogative. The intention and aim of investment treaty are not to cover and protect normal commercial functions but rather the action of the government which may seem business like but are sovereign in nature. Had the tribunal delved and concentrated on this core aspect of international investment law it would have realised that the PSI contract involves the power of government (matter related to custom and revenue are the sovereign function of government and PSI agreement was a contract relating to the sovereign action of the Pakistan government) and it would have been able to assert jurisdiction without opening any floodgates.

In my opinion when there is an umbrella clause, the parties should go ahead to give effect to the clause, however wide it is. The jurisprudence behind the umbrella clause is to give it a broad interpretation by literally reading it the way it is written. Further, if the argument given in the decision are carried to the extreme, it would invalidate not just the umbrella clause, but all BIT provisions. Conversely the host state should be the one to take the first step to allow the umbrella to take effect and raise the contract claim to treaty claim. Although this step would benefit both the parties, but the host state stands to gain from this action rather than loosing anything. My analogy is based on the assumptions that such an action would be beneficial to the host state, as it will be seen as a positive and pro-investment stance by other investors. The host state stand to benefit by way of a more hospitable, more attractive environment for foreign investment by the adoption of the BIT provisions such as clause like umbrella clause (also forum section clause).

Another issue that arises is, reengaging with the clause of the BIT after the investment and that too after a claim has arisen, creates uncertainty in the global marketplace and this may will result in investor losing confidence in the host effecting loss of investment opportunity. In my conclusion, I complete agree with what Jarrod wong states, “the language, history and purpose of umbrella clause dictates one reasonable interpretation – that it applies to investment contracts without any exception and hence it should be enforced in case of any dispute in accordance with the party’s agreement.” Moreover, a foreign investor enters an investment agreement with the host by drawing confidence from the BIT and its clauses should be applied as it is until and unless it is blatantly against any concept of international law. Some recent cases have tried to deal with the interpretation of the umbrella clause. while some went for the decision went for Broad, Unconditional Plain Meaning of the clause like SGS v. Paraguay and EDF v. Argentina. Those cases stuck to the concept that there should be a plain meaning buy some of them went for conditional plan meaning but none of the tribunal went ahead to clarify the confusion created by the SGS decision. We are slowly seeing a trend in the practice but far from reaching a conclusive finality. So, the present requirement is for ICSID to clarify on the umbrella issue that has cropped up because of the SGS decisions and the interpretation of the clause should be broad and literal as the jurisprudence related to the umbrella clause suggests.

Yuval Shany, “Contract Claims Vs. Treaty Claims: Mapping Conflicts Between Icsid Decisions On Multisourced Investment Claims,” The American Journal of International Law, American Society of International LawVol. 99, No. 4 (Oct., 2005), pp. 835-851

Jarrod Wong, Umbrella Clauses in Bilateral Investment Treaties: Of Breaches of Contract, Treaty Violations, and the Divide between Developing and Developed Countries in Foreign Investment Disputes, 14 Geo. Mason L. Rev. 135 (2006).

ibid

Compania de Aquas del Aconquija, S.A. v. Argentina, Decision on Annulment, ICSID No. ARB/97/3, 41 ILM 1135, 1154 (2002).

SGS Societe Generale de Surveillance S.A. v. Pakistan, Decision on Jurisdiction, ICSID No. ARB/01/13 (Aug. 6, 2003), 18 ICSID REV. 301 (2003), 42 ILM 1290 (2003)

SGS Societe Generale de Surveillance S.A. v. Philippines, Decision on Jurisdiction, ICSID No. ARB/02/6 (Jan. 29, 2004)

Shany, (n1)

ibid

Cf Kalypso Nicolaidis &Joyce L. Tong, Diversity or Cacophony? The Continuing Debate over New Sources of International Law, 25 MICH.J. INT’L L. 1349, 1351 (2004)

Shany, (n1)

Ibid., pp. 835-851

Lanco International Inc. v. the Argentine Republic (hereinafter Lanco), ICSID Case No. ARB/97/6, Preliminary Decision: Jurisdiction of the Arbitral Tribunal, 8 December 1998, 40 I.L.M. 457, 2001

Ibid.

ibid., at para. 31.

Compania de Aguas del Aconquija S.A. and Vivendi Universal v. Argentine Republic (ICSID Case No. ARB/97/3, Decision on Annulment of 3 July 2002, 41 I.L.M. 1135, 2002, at para. 50.

ibid

ibid., at para. 54

ibid., at para. 140

SGS v Pakistan (n 5) at para 186 & 187

United Nations Centre on Transnational Corporations, Bilateral Investment Treaties, UNCTC, 1988, at 39.

Christoph Schreuer, Travelling the BIT Route: of waiting periods, umbrella clause and Fork in the road, 5 J.W.I.T 2, 231 (2004)

ibid

Stanimir a alexandrov, ‘Breaches of Contract and Breaches of Treaty: The Jurisdiction of Treaty-based Arbitration Tribunals to Decide Breach of Contract Claims in SGs v Pakistan and SGs v Philippines’ [2004] 5 J. World Investment & Trade 55

Emmanuel Gaillard, “Investment Treaty Arbitration and Jurisdiction Over Contract Claims- the SGS Cases Considered” in International Investment Law and Arbitration: Leading cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law, Tod Weiler Editor (2005).257, 2004, at 271-272

alexandrov, (n 23)

SGS v Philippine (n 6) at para 126

Stephen Schwebel, “International Protection of Contractual Agreements” (1959) A.S.I.L. Proc. 273

ibid

Thomas W. Wälde, ‘The “Umbrella” (or Sanctity of Contract/Pacta sunt Servanda) Clause in Investment Arbitration: A Comment on Original Intentions and Recent’ [2004] 1(4) TDM  1

Wong, (n 2)

Schwebel, (n 24)

Wong, (n 2)

Société Générale de Surveillance S.A. v. Republic of the Philippines, ICSID Case No. ARB/02/6

EDF International S.A., SAUR International S.A. and Leon Participaciones Argentinas S.A. v. Argentine Republic, ICSID Case No. ARB/03/23