Abstract
The thesis is discusses what is the scope of Umbrella Clauses. State undertakings must satisfy the condition of being investment. That is the first requirement of applicability of investment regime to state undertakings. Despite state undertakings was seen as wide concept (by some tribunals) the language of the clause and prevailing view support undertakings must be limited to contractual undertakings (in practice some viewed that Umbrella Clause can be extended to municipal law obligations) ). However, for the purpose of attribution of contracts under international law, states must be involved. But international obligation only arises when state abuses its contractual undertaking. When contracts are concluded by private parties, the investor must demonstrate that that private party was exercising the element of governmental function when it entered into on behalf of particular state. And also, breach must arise from the exercising of granted public function. This will narrow the types of contractual undertakings to licenses, concessions or stabilization clauses. This means, even though certain commercial contracts can qualify to be an investment does not necessarily elevate these kind of contracts under international law. Because of absence of any exercising of governmental function while entering into such contracts. Those contracts nature just commercial and investor will provide some service for certain amount of pay.
The thesis is discusses what is the scope of Umbrella Clauses. State undertakings must satisfy the condition of being investment. That is the first requirement of applicability of investment regime to state undertakings. Despite state undertakings was seen as wide concept (by some tribunals) the language of the clause and prevailing view support undertakings must be limited to contractual undertakings (in practice some viewed that Umbrella Clause can be extended to municipal law obligations) ). However, for the purpose of attribution of contracts under international law, states must be involved. But international obligation only arises when state abuses its contractual undertaking. When contracts are concluded by private parties, the investor must demonstrate that that private party was exercising the element of governmental function when it entered into on behalf of particular state. And also, breach must arise from the exercising of granted public function. This will narrow the types of contractual undertakings to licenses, concessions or stabilization clauses. This means, even though certain commercial contracts can qualify to be an investment does not necessarily elevate these kind of contracts under international law. Because of absence of any exercising of governmental function while entering into such contracts. Those contracts nature just commercial and investor will provide some service for certain amount of pay.