Enabling Private Ordering - the University of Minnesota Law School

2009] UMBRELLA CLAUSES 53
the Italian-Moroccan BIT that granted jurisdiction for “[a]ll
disputes and differences, including disputes related to the
amount of compensation due in the event of expropriation,
nationalisation, or similar measures, between a Contracting
Party and an investor of the other Contracting Party concerning
an investment of the said investor on the territory of the first
Contracting Party . . . .” 143
Both Tribunals considered that this provision did not limit
the investor to bringing claims for the violation of international
law but “compels the State to respect the jurisdiction offer in
relation to violations of the Bilateral Treaty and any breach of a
contract that binds the State directly.” 144 Both tribunals thus
recognized that broadly worded arbitration clauses in BITs
could establish jurisdiction of treaty-based tribunals for simple
contract claims. 145
Like the older decisions in inter-State proceedings discussed
above, 146 the inclusion of broadly worded arbitration clauses in
investment treaties shows that the distinction between contract
claims and treaty claims is not categorical and insurmountable.
On the contrary, as long as arbitration clauses in investment
treaties encompass both types of claims, contract claims can be
entertained by dispute resolution bodies established on the basis
of an international treaty. The practice of States to include
broadly worded arbitration clauses in investment treaties
therefore also confirms that international law is not built upon a
rigid distinction between contract claims and treaty claims that
Decision on Jurisdiction (July 16, 2001).
143. Salini v. Morocco, ICSID Case No.ARB/00/4, at para. 15.
144. Id. para. 61; see also Consortium RFCC, ICSID Case No. ARB/00/6, at para.
68.
145. In the concrete cases, the Tribunals declined jurisdiction because they
assumed that only contracts with the central government were covered, not
however, contracts with independent State agencies. See Salini v. Morocco, ICSID
Case No.ARB/00/4, at paras. 59–63; Consortium RFCC, ICSID Case No. ARB/00/6,
at paras. 67–71; Impregilo S.p.A. v. Islamic Republic of Pakistan, ICSID (W. Bank)
Case No. ARB/03/3, Decision on Jurisdiction, paras. 211 et seq.(Apr. 22, 2005). But
see Salini Costruttori S.p.A. and Italstrade S.p.A. v. The Hashemite Kingdom of
Jordan, ICSID Case No. ARB/02/13, Decision on Jurisdiction, paras. 97 et seq. (Nov.
29, 2004); Compañia de Aguas del Aconquija S.A. & Vivendi Universal v. Argentine
Republic, ICSID (W. Bank) Case No. ARB/97/3, Decision on Annulment, para. 55
(July 3, 2002) (discussing claims against a province under Article 8 of the BIT). See
also SGS Société Générale de Surveillance S.A. v. Republic of the Philippines, ICSID
(W. Bank) Case No. ARB/02/6, Decision on Objections to Jurisdiction, paras. 131–
132 (Jan. 29, 2004) (accepting jurisdiction over contract claims based on broad
arbitration clauses).
146. See supra Part 0.