NEWSLETTER-2017

199 ARBITRATION LAW can be held liable for the breach of contract made by a fund granted with governmental power. To the contrary, in Impregilo v. Pakistan 21 , it was concluded that the Claimant cannot benefit from the umbrella clause of the BIT signed between Italy and Pakistan since the contract was not concluded directly with Pakistan, but with a separate and dis- tinct entity, the Pakistan Water and Power Development Authority 22 . Regarding the disputes in which the Respondents claim that the investors’ local subsidiaries are not entitled to request protection un- der the umbrella clauses, some tribunals extended the effect of the umbrella clauses to the persons or entities who were in a contractual relationship with the states as regard to investments 23 . In contrast, some others requested the Claimant to be a direct foreign investor, but not its local subsidiary, in order to enjoy the protection of the umbrella clauses 24 . Conclusion Umbrella clauses are amongst the most contested claims raised in investment disputes since they enable investors to elevate their breach of investment contract claims to the level of violation of international law. Tribunals have been assessing these matters from diverging as- pects and creating variances in jurisprudence. 21 Impregilo S.p.A. v. Islamic Republic of Pakistan, Decision on Jurisdiction , ICSID Case No. ARB/03/3, available at: https://icsid.worldbank.org/en/Pages/cases/ca- sedetail.aspx?CaseNo=ARB/03/3. 22 Impregilo S.p.A. v. Islamic Republic of Pakistan, par. 223; Zenginkuzucu, p. 181. 23 For caselaw on this matter please see: Continental Casualty Company v. Argen- tine Republic , CMS Gas Transmission Company v. Argentine Republic, Enron Creditors Recovery Corporation (formerly Enron Corporation) and Ponderosa Assets, L.P. v. Argentine Republic, Sempra Energy International v. Argentine Re- public, Duke Energy Electroquil Partners and Electroquil S.A. v. Republic of Ec- uador. 24 For caselaw on this matter please see: Siemens A.G. v. Argentine Republic, El Paso Energy International Company v. Argentine Republic ; Dolzer / Schreuer, p. 176.