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VOJTĚCH TRAPL CYIL 5 ȍ2014Ȏ Contracting Party , and a “substantive approach” to the respect clause: “ Each contacting Party shall observe any other obligation in writing it has assumed with regard to investments in its territory by investors of another Contracting Party. Disputes arising from such obligations shall only be settled under the terms of the contracts underlying the obligations ”. 8 The U.S. Model BIT of 1983 contains an umbrella clause providing that “[e] ach Party shall observe any obligation it may have entered into with regard to investors or nationals or companies of the other Party .” Subsequent U.S. Model BITs published in 1984 and 1987 include similarly worded umbrella clauses. 9 Commentators analyzing these umbrella clauses agree on their effects, namely that such a clause “raises to a treaty issue any attempt by a BIT partner to invalidate a contract by changes in domestic law or otherwise…[such that] a breach of contract constitutes a breach of treaty.” Article 8(1) of the US Model BIT 2012 provides that “Neither Party may, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment of an investor of a Party or of a non-Party in its territory, impose or enforce any requirement or enforce any commitment or undertaking (a)-(h) so as to afford protection on the basis of nationality to its own investors or investments or to technology of the Party or of persons of the Party .“, and in addition, Article 8(2) provides that “Neither Party may condition the receipt or continued receipt of an advantage, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment in its territory of an investor of a Party or of a non-Party, on compliance with any requirement (a)-(d) , and Article 8(4) goes on to clarify that “For greater certainty, paragraphs 1 and 2 do not apply to any commitment, undertaking, or requirement other than those set out in those paragraphs. “, and finally, Article 8(5) states that “This Article does not preclude enforcement of any commitment, undertaking, or requirement between private parties, where a Party did not impose or require the commitment, undertaking, or requirement .“ 10 An example of an attempt to extend the use of the umbrella clause goes back to 1967 and it was seen when the OECD expressed that extention in its proposal of the (OECD) Draft Convention on the Protection of Foreign Property. Although the draft OECD did not met its purpose, the idea of the OECD Council of an umbrella clause was supported in its 150th meeting, and it led to encouraging Member States to incorporation of the umbrella clause into bilateral agreements. The proposal in Article 2 specifically stated that “[ a ] ny party must always ensure compliance with the commitments they [are undertaking] in relation to the property of the citizens of any other Contracting Party .” 11 8 OECD, Working papers on International Investments, No 2006/3, Interpretation of the Umbrella Clause in Investment Agreements, October 2006, page 5. 9 See 1984 U.S. Model BIT art. II(2), Feb. 24, 1984, available at: http://www.law.nyu.edu/sites/default/ files/ECM_PRO_066871.pdf. 10 http://www.ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeting.pdf. 11 SALACUSE, Jeswald W. The Law of Investment Treaties. 1. vydání. New York: Oxford University Press, 2010. 517 s. ISBN 978-0-19-920605-6. Str. 277: „Each Party shall at all times ensure the observance

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