Skadden Skadden, Arps, Slate, Meagher & Flom (UK) LLP www. skadden.com Jurisdictional Scope of Investment Arbitrations Ana Stanič British Institute of International and Comparative Law 8 September 2006

ISSUES CONCERNING JURISDICTION RATIONE MATERIAE 1.Does a breach of contract constitute a violation of international law? 2.Effect of so-called “umbrella clauses” in expanding the jurisdiction of tribunals; and 3.The rules of attribution and, in particular, whether different rules of attribution apply to contract claims and treaty claims. Looked at through the prism of two recent BIT cases: BP- Pan American Energy et al v. Argentine Republic, ICSID, Decision on Preliminary Objection, 27 July 2006 EnCana Corporation v. Ecuador, UNCITRAL, Award, 3 February 2006

SPECTRUM OF UMBRELLA CLAUSES SGS v. Pakistan Salini v. Jordan SGS v. Philippines Noble Ventures v. Romania CMS v. Argentina BP-PAN American Either Contracting Party shall constantly guarantee the observance of commitments it has entered into with respect of investments. Each Contracting Party shall create and maintain in its territory a legal framework to guarantee the investors continuity of legal treatment, including the compliance in good faith of all undertakings assumed with regard to each specific investor. Each Contracting Party shall observe any obligation it has assumed with regard to specific investments in its territory by investors of the Other Contracting Party. Each party shall observe any obligations it may have entered into with regards to investments. Each Contracting Party shall observe any obligation it may have entered into with regard to investments. EFFECTNo Yes Yes in CMS (?) No in BP-PAN American