International Law
Mahmoud Hajjar; Seyed ghasem zamani
Abstract
The interpretation of treaties is particularly important in the field of treaty law, as in most cases it is not possible to apply treaties without their interpretation. In addition to the text and context of the treaty, the relevant rules of international law, including the general principles of law, ...
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The interpretation of treaties is particularly important in the field of treaty law, as in most cases it is not possible to apply treaties without their interpretation. In addition to the text and context of the treaty, the relevant rules of international law, including the general principles of law, can play an important role in the interpretation of treaties. A treaty is a creation of the international legal system, and its interpretation and implementation should be carried out within the context of the legal system that governs it. The main question to which this research intends to answer is: What is the position of general principles of law in the interpretation of treaties? It seems that the use of general principles of law in the interpretation of treaties can reduce the potential fragmentation of international law and promote its coherence. In this research, by using library sources, international documents and international judicial decisions and arbitration awards and using a descriptive-analytical method, the position of general principles of law in the interpretation of treaties will be examined.
hamid reza oloumi yazdi; somayeh mohammadi
Volume 16, Issue 43 , February 2015, , Pages 47-80
Abstract
The Umbrella Clause has nearly become one of the most common rules of the mostinvestment treaties, which provides more protections for foreign investor. Providinga proper and true sense of this clause has become highly controversial issue ininternational investment law that has led many arbitral tribunals ...
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The Umbrella Clause has nearly become one of the most common rules of the mostinvestment treaties, which provides more protections for foreign investor. Providinga proper and true sense of this clause has become highly controversial issue ininternational investment law that has led many arbitral tribunals to adopt specificstance in this respect. Here, the fundamental point is whether the forum stipulated inthe bilateral investment treaty is competent to settle disputes, which are arisen frominvestment contract between host State and foreign investor, or not? If it so, then thenext question would be: what will be the effect of the determining the forum bystipulated dispute settlement clause in the contract. Does this clause turn contractclaims into the treaty claims? And what will be the impacts and limits of this clause?Answering to these questions, the arbitral tribunals have responded in two differentways. Some of them have interpreted the clause in a narrow sense; they havedistinguished sovereign from non-sovereign act of host State. According to theirpoint of view, the Umbrella Clause of BIT may be violated if the host State measure,in breaching its contractual obligation, is applied on the basis of its sovereignty. Incontrast, the other tribunals have interpreted this clause in a broad sense which theviolation of any contractual obligation of host State leads to a breach of this clauseand consequently the forum in the investment treaty is qualified to hear the dispute.It seems that the broad interpretation and second approach is more logical in theinterpretation of the clause; it is also more consistent with the purpose and historyof the emergence of this clause and makes it more efficient.
