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The Decision of the ICSID Ad Hoc Committee in CMS v. Argentina Regarding the Conditions of Application of an Umbrella Clause: SGS v. Philippines Revisited

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In CMS v. Argentina, an ICSID ad hoc Committee partially annulled the first ICSID award on the merits dealing with the 2000–2002 Argentine crisis, for failure to state reasons regarding the conditions of application of an umbrella clause. This question was somewhat overshadowed in prior cases by the question of the clause's effect. The key finding of the Committee is that an umbrella clause does not change the content, proper law of, and parties to, the obligations of the State, the breach of which may trigger the umbrella clause. The decision of the CMS ad hoc Committee has sparked debate as to whether the Committee was entitled, within the limited framework of its annulment powers, to suggest such an interpretation of the conditions of application of umbrella clauses. The focus of this article is different and twofold. Because the CMS ad hoc Committee did suggest such an interpretation, the article first traces its roots to the decision on jurisdiction in SGS v. Philippines. It then evaluates the consequences that would appear to follow from the Committee's findings at three levels. 1) May all types of State obligations trigger an umbrella clause? 2) May an umbrella clause apply to obligations undertaken by a State towards a subsidiary of an investor, as opposed to the investor itself? 3) May it apply to obligations undertaken towards investments or investors by state-owned or state controlled entities having their own legal personality distinct from the State?

Affiliations: 1: Partner, International arbitration, Salans, Paris;, Email:; 2: Senior associate, International arbitration, Salans, Paris;, Email:


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