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Umbrella Clauses and Transfer Provisions in the (Invisible) EU Model BIT

The draft Investment Chapter of the CETA between the EU and Canada includes an umbrella clause, on EU's proposal. Nevertheless, the inclusion of such a clause appears to be quite uncertain. Furthermore, the wording of the umbrella clause, proposed by the EU, fails to address all uncertainties regarding the effects and scope of application of umbrella clauses still existing in jurisprudence. Conversely, the inclusion in the draft Investment Chapter of a transfer provision, accompanied with safeguard provisions in case of serious balance-of-payments difficulties and external financial difficulties, does not seem to be a contested issue among the Member States. A new development at the EU level might make investment protection matters more complicated, Following the opening of the negotiation on a free trade agreement with the US, some Member States oppose investment arbitration tout court at least in the prospective EU-US CETA.