Užsienio investicijų apsauga tarptautinėje ekonominėje teisėje: dvišalės investicinės sutartys ir skėtinės nuostatos apsaugos mechanizmas

Abstract

A substantial rise in international investment over the past few decades gave the impetus for creation of various legal measures for protecting them. While it is generally accepted that there is a need for a global treaty for protection of foreign investment, currently the legal framework of investment protection is mainly based on bilateral investment treaties, commonly referred to as BITs. A bilateral investment treaty is a treaty between two states establishing a legal framework for the investment flows between the two countries. This scientific work presents the fundamentals of bilateral investment treaties, their common structure, goals and gives and insight into their future. The article also deals with one of the most problematic issues in bilateral investment treaty practice – the so-called umbrella clauses. An umbrella clause is a clause by which both states concluding a bilateral investment treaty shall at all times ensure the observance of undertakings given by it in relation to property of nationals of any other contracting party. These kinds of clauses may cause problems distinguishing contract and treaty claims by investors because according to this clause a breach of an investment contract is a breach of an investment treaty while there used to be a clear distinction between the two in international law. This article presents the concept of umbrella clauses, their development and main features.