The Investment Treaty Arbitration Review: Ratione Temporis or Temporal Scope

I Introduction

The expression ratione temporis denotes the effect of the passage of time on obligations or a tribunal's power to decide a dispute. Numerous tribunals have dismissed claims on this basis. However, despite its potentially critical impact, this area has received relatively little attention in decisions or commentary. Tribunals frequently disagree on the basic principles or inconsistently apply the same principle.

The starting point in a specific case is the express wording of the treaty, which may determine its temporal scope.2 In the absence of express provisions, temporal issues are decided by reference to principles contained in the Vienna Convention on the Law of Treaties (VCLT),3 the International Law Commission's Draft Articles on State Responsibility (the ILC Articles)4 and decisions of international courts and investment treaty tribunals.

This chapter deals with common issues regarding temporal jurisdiction: Section II addresses issues relating to the timing of an 'investment'; Section III outlines the principle of non-retroactivity, and exceptions to the principle; Section IV examines issues relating to the timing of a 'dispute'; Section V outlines temporal issues relating to termination of treaties; and Section VI addresses extinctive prescription.

II Timing of an 'investment'

i What happens when the investment was made prior to the treaty coming into force?

This question does not feature significantly in cases. This is likely due in large part to the fact that an investment treaty will commonly state that it covers investments made prior to its entry into force.5

If a treaty is silent on the matter, it has been suggested that investments made before the treaty's entry into force are included within its scope.6

ii What happens if the investment occurred after the breach?

It is well settled that a tribunal has no jurisdiction ratione temporis to consider allegations of a breach of a treaty in relation to acts that occur prior to the making of an investment. In Mesa Power Group LLC v. Canada, the tribunal affirmed that jurisdiction extends only to an investment that existed 'at the time the challenged measure was adopted'.7 The same point was made in Philip Morris v. Australia.8 The tribunal found that the claimant had made its investment before the contested measure, albeit it ultimately held that the initiation of the arbitration constituted an abuse of rights, a different principle from ratione temporis.9

III Non-retroactivity of treaties

Tribunals have repeatedly found that treaties, in the absence of clear language to the contrary, will not apply retroactively to acts or facts that occur before they enter into force.10 They have relied on Article 28 of the VCLT and Article 13 of the ILC Articles11 in doing so. Even if a treaty contains an explicit non-retroactivity clause, tribunals tend to see it as a mere restatement of Article 28 of the VCLT.12 However, facts occurring before the entry into force of a treaty can be taken into consideration in determining whether the treaty was subsequently breached.13

Some tribunals have found that it is necessary to 'distinguish between (1) jurisdiction ratione temporis and (2) the applicability ratione temporis of the substantive obligations contained in a BIT'.14 The Philip Morris tribunal stated this distinction was 'correct in theory', but was unnecessary when the cause of action was founded upon a treaty breach.15

The principle of non-retroactivity is subject to qualifications where there are continuous and composite acts, and where a treaty is not yet in force, but a state has signed it.

i Can continuous or composite acts occurring before the treaty enters into force be considered in assessing an alleged breach?

The principle of non-retroactivity may not apply to state action that is deemed to be a continuous or composite act. In such cases, a tribunal assessing an alleged breach may consider conduct that occurred before the treaty's entry into force.16 However, a number of tribunals have been cautious in attributing significant weight to such acts, so as to avoid an overreaching retroactive application of the substantive provisions of a treaty. In the words of the tribunal in Renco v. Peru II, in order not to pass judgment on the lawfulness of conduct predating the entry into force of the treaty, the allegedly wrongful conduct postdating the entry into force of the treaty must constitute an actionable breach in its own right when evaluated in light of all the circumstances, including acts or facts that predate the entry into force of the treaty.17 Some tribunals have stated that continuous or composite acts prior to the treaty's entry into force are relevant only as factual background.18 Others have appeared to give them more weight.19 Acts constituting a breach, along with damages, may be limited to those that post-date the treaty's entry into force.20

A continuous act is defined as a single act that extends over time and breaches an international obligation throughout.21 Article 28 of the VCLT supports the relevance of continuous acts despite the principle of non-retroactivity.22 The same is true of Article 14(2) of the ILC Articles.23 A number of tribunals have taken a similar approach.24 Acts found to be continuous include the non-payment of a contractually specified amount,25 the continued withholding of permits and concessions,26 and a continuing delay by national courts.27

A composite act is an act composed of a 'series of actions or omissions defined in aggregate as wrongful'.28 A composite act does not 'occur' until the completion of the series.29 Tribunals have found it sufficient that the point of completion takes place after the effective date of the treaty.30 Tribunals have, however, been reluctant to accept claims of a composite breach whose purpose is to circumvent a limitation period stated to run from the investor's first knowledge of breach or loss.31

ii What happens if a treaty has not come into force, but a state has signed it?

Arguments that a state is bound by a treaty before it enters into force have been made in three contexts. First, where the treaty is provisionally applicable; second, on the basis that states should refrain from committing acts that defeat the object and purpose of the signed treaty; and third, by reference to an estoppel argument that a tribunal has jurisdiction to hear a case against a state that has implicitly consented to its jurisdiction through words, conduct or silence.

First, as specified in the VCLT, the contracting parties may agree to provisionally apply a treaty, or part of a treaty, before it enters into force.32 In those cases, the treaty will be binding, unless the treaty provides otherwise or it is otherwise agreed.33

Provisional application has been addressed in cases concerning Article 45 of the Energy Charter Treaty (ECT).34 Tribunals have repeatedly retained jurisdiction on the basis of Article 45, including in the Yukos cases, where the tribunal found the ECT was provisionally applicable to Russia even though Russia had not ratified the treaty.35 Ultimately, Russia was held to be liable for breach of the expropriation provision.36 The tribunals in Petrobart v. Kyrgyzstan37 and Kardassopoulos v. Georgia took a similar approach.38

Second, Article 18 of the VCLT requires a state to refrain from acts that would defeat the object and purpose of a treaty. Legal security and transparency are the aims behind this principle.39 The tribunal in Tecmed v. Mexico made explicit reference to Article 18, and stated that it would take the principle into consideration in assessing acts enacted by Mexico between the signature and the entry into force of the relevant treaty.40 However, a more restrictive approach was adopted in MCI v. Ecuador, where the tribunal pointed out that Article 18 is an application of the principle of good faith and does not amount to the retroactive application of a treaty's clauses.41

Third, in Besserglik v. Mozambique, an arbitration conducted under the ICSID Arbitration Facility Rules, the tribunal held (inter alia) that an estoppel could not found its jurisdiction or give effect to a treaty not in force. It went on to observe, obiter, that even if estoppel were capable of giving rise to jurisdiction as a matter of international law, the factual predicates for an estoppel did not exist on the facts before it.42

IV 'Disputes' arising before the entry into force of the treaty

Numerous decisions address the meaning of a 'dispute' in treaties' arbitration provisions. Cases in this area have broadly fallen into two categories.

The first category concerns cases where the treaty makes provision, explicitly43 or implicitly,44 for the exclusion of disputes that arose prior to the treaty coming into force.

The second comprises cases where the treaty provides no guidance and tribunals have applied general international law principles to determine whether the treaty covers disputes arising before its entry into force. Ping An v. Belgium highlighted the divergent views in such cases, noting that some tribunals have applied a presumption of non-retroactivity (with or without reference to VCLT Article 28) to deny jurisdiction,45 while others have rejected the existence of any such presumption.46 The Ping An tribunal expressed doubt as to whether Mavrommatis Palestine Concessions47 stood for 'a principle that there is a presumption that the jurisdiction of a tribunal extends to disputes which arose prior to its establishment'.48

Common to both categories is the importance of determining when the dispute 'arises'. Some tribunals have asserted that the key factor in determining the existence of a dispute is the expression of a disagreement, which in time acquires a precise legal meaning, or the establishment of a 'conflict of legal views and interests'.49 The identification of when this occurs can give rise to opposing results in apparently similar circumstances. In Lucchetti v. Peru, the tribunal outlined what has been coined the 'subject matter' test, asking if 'the facts or considerations that gave rise to the earlier dispute continued to be central to the later dispute'50 or if the disputes had the same 'origin or source'.51 It considered the subject matter, origin and source of both disputes to be insufficiently different for it to accept jurisdiction.52 By contrast, in Jan de Nul v. Egypt,53 the tribunal held that the dispute before it, which dealt with treaty violations, was a 'new dispute', which crystallised after the treaty came into force.54

More recently, the tribunal in the second Micula v. Romania arbitration declined jurisdiction over a claim regarding unilateral changes by the state to the price under a contract for the sale of mineral water, on the basis that the ordinance underpinning the price changes pre-dated the BIT. While subsequent changes introduced after the BIT's entry into force may have increased the Claimants' loss, they were 'not new disputes'.55

V Impact of the termination of treaties

i Can a claim be initiated after the treaty has been terminated?

BITs tend to contain provisions regulating how they are terminated. Many specify an initial period during which they cannot be terminated except in exceptional circumstances, following which termination is permissible upon a period of written notice. In most BITs, a specific provision ('sunset' clause) provides for treaty protections to continue after termination for existing investments, usually for between 10 and 15 years.56

Temporal issues surrounding the termination of BITs are of increasing prominence. Such terminations have historically been rare,57 but a growing number of states have served notices to terminate or threatened to do so, often because of the existence of or preference for multilateral investment protection arrangements.58 Most topically, EU Member States have agreed to terminate their intra-EU BITs by way of a plurilateral treaty, signed by 23 Member States on 5 May 2020 (the Termination Agreement).59 This was consequent upon the CJEU's decision in the Achmea case,60 which held that the Treaty on the Functioning of the European Union precluded the investor–state arbitration provision of the Netherlands–Slovakia BIT.61 The Achmea decision and Termination Agreement have given rise to significant controversy, with their effects being tested before a range of tribunals and national courts.62 The Termination Agreement provides that 'Pending Arbitration Proceedings' (which include those where a final award has been rendered, but not executed) should not continue, but will instead be subject to transitional measures envisaging a 'structured dialogue' between the investor and state with a view to settlement.63 'Sunset' provisions are also said to be terminated and to have no legal effects (including in specific BITs that were already terminated by mutual consent).64 While there are previous examples of states purporting to disapply sunset clauses in cases of termination by mutual consent,65 the effectiveness of this appears not to have been tested before any tribunal and so challenges to this aspect of the Termination Agreement are to be expected.66

ii What is the impact of a state's denunciation of the ICSID Convention?

The withdrawals from the ICSID Convention of Bolivia, Ecuador and Venezuela in 2007, 2009 and 2012, respectively, spurred debate around the effects of withdrawal on consent to jurisdiction given while the treaty was in force.67 Commentators and tribunals disagree on the effect of Articles 71 and 72, and more specifically, the meaning of 'consent' in Article 72, which provides that denunciation does not affect 'rights or obligations under this Convention . . . arising out of consent to the jurisdiction of the Centre given by [a State or investor] before such notice was received by the depositary'. In Venoklim v. Venezuela, the tribunal found that during the six-month period after denunciation, the state was still a contracting state, whose consent to arbitration subsisted, and that consent could still be accepted and 'perfected' by an investor.68 The Blue Bank v. Venezuela tribunal had no hesitation in agreeing.69 By contrast, the tribunal in Fábrica de Vidrios Los Andes CA and Owens-Illinois de Venezuela CA v. Venezuela (Favianca) considered 'consent' in Article 72 to mean consent already perfected – Venezuela's offer to arbitrate in the treaty could not therefore be 'accepted' after its denunciation.70 The tribunal remarked that the ordinary meaning of 'consent to the jurisdiction' could encompass either interpretation, but in the context of the Article and Convention as a whole (including the travaux) it was 'quite obvious' that perfected consent was required.71 It therefore declined jurisdiction over the dispute, a determination reportedly left intact on 22 November 2019 by the ad hoc Committee hearing the claimants' annulment application.72

The Favianca tribunal's reasoning would logically imply that consent could not be perfected after the six-month period in Article 71. While the Venoklim or Blue Bank tribunals did not address this broader issue, in his separate opinion in Blue Bank, Christer Söderlund opined that consent in a treaty remained effective even beyond the six months following denunciation, so ICSID arbitration was in principle available at any time until the treaty's termination.73 Some commentators have concurred with Söderlund's view on this question.74

VI Extinctive prescription

The principle of extinctive prescription is that a right can be lost, or a claim barred, when not exercised within a certain amount of time.75 For extinctive prescription to operate, the delay must be unreasonable and attributable to the claimant. Prejudice to the respondent may also be a relevant consideration.76 Although this principle is recognised in customary international law, cases applying it are rare and claims are typically time-barred via a specific provision in a treaty.77

Some treaties provide express time limitations on claims. For example, the NAFTA provides a three-year limitation from 'the date on which the investor first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the investor has incurred loss or damage'.78 In Ansung Housing v. China, the tribunal summarily dismissed a claim under a similar provision in a China–Korea BIT as the claim was manifestly time-barred given the facts stated in the Request for Arbitration.79 In Ríos v. Chile, the tribunal found that the notification of intent was not enough to suspend the limitation period.80 Tribunals can, however, refer to facts occurring outside the limitation period, where relevant.81 For alleged breaches consisting of composite acts, the tribunal in Ríos v. Chile observed that the BIT limitation period runs from the date of the last action or omission which, taken with earlier actions or omissions, is sufficient to constitute a wrongful act. Subsequent aggravating actions or omissions do not extend the limitation period.82

Where a treaty does not provide specific time bars, tribunals have generally allowed claims, without rejecting the possibility of time-barring them. In Wena Hotels v. Egypt, a lapse of seven years after the expropriation was insufficient to bar the claim because the claimant had diligently pursued its claim and provided sufficient notice.83 Similarly, in Kardassopoulos v. Georgia, a delay of 10 years did not prevent the claim from being brought as the claimant had reasonably believed an amicable settlement was possible and Georgia had been given timely notice of the dispute.84


Footnotes

1 Barton Legum is a partner in Dentons' Paris office, Marta Cichomska is a senior associate in the firm's Warsaw office and Catherine Gilfedder is a senior associate in its London office.

2 This chapter only examines investment treaties, although temporal issues may arise in relation to any consent document.

3 Vienna Convention on the Law of Treaties (adopted 22 May 1969, opened for signature 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331.

4 James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge: Cambridge University Press, 2002.

5 See, for example, the Canadian, Chinese, German, Malaysian and Turkish model bilateral investment treaties (BITs). For further examples, see Zachary Douglas, The International Law of Investment Claims, Cambridge: Cambridge University Press, 2009, page 340; or, more recently, Cortec Mining v. Republic of Kenya, ICSID Case No. ARB/15/29, Award (22 October 2018) [284, 286] and Jin Hae Seo v. The Government of the Republic of Korea, HKIAC Case No. 18117, Final Award (24 September 2019) [141–142].

6 Douglas (footnote 5) pages 340–341.

7 Mesa Power Group LLC v. Government of Canada, UNCITRAL, PCA Case No. 2012-17, Award (24 March 2016) [326] (Mesa v. Canada).

8 Philip Morris Asia Limited v. The Commonwealth of Australia, UNCITRAL, PCA Case No. 2012-12, Award on Jurisdiction and Admissibility (17 December 2015) (Philip Morris v. Australia).

9 id. [527].

10 See, for example, Mondev International Ltd v. United States of America, ICSID Case No. ARB(AF)/99/2, Final Award (11 October 2002) [68] (Mondev v. United States); Salini Costruttori SpA and Italstrade SpA v. Hashemite Kingdom of Jordan, ICSID Case No. ARB/02/13, Decision on Jurisdiction (9 November 2004) [177] (Salini v. Jordan); Víctor Pey Casado and President Allende Foundation v. Republic of Chile, ICSID Case No. ARB/98/2, Award (8 May 2008) [581–584]; Société Générale In respect of DR Energy Holdings Limited and Empresa Distribuidora de Electricidad del Este SA v. The Dominican Republic, LCIA Case No. 7927 (UNCITRAL), Award on Preliminary Objections to Jurisdiction (19 September 2008) [78–84] (Société Générale); Walter Bau v. Thailand, UNCITRAL, Award (1 July 2009) [9.67–9.69] (Walter Bau v. Thailand); Ping An Life Insurance Company of China Limited and Ping An Insurance (Group) Company of China Limited v. Kingdom of Belgium, ICSID Case No. ARB/12/29, Award (30 April 2015) [171–172] (Ping An v. Belgium); Mesa v. Canada (footnote 7) [325].

11 Crawford (footnote 4) page 131.

12 The Renco Group Inc. v. Republic of Peru II, PCA Case No. 2019-46, Decision on Expedited Preliminary Objections (30 June 2020) [140].

13 Aaron C. Berkowitz et al (formerly Spence International Investments et al) v. Republic of Costa Rica, ICSID Case No. UNCT/13/2, Interim Award (Corrected) (30 May 2017) [217–218] (Spence v. Costa Rica); holding that pre-entry into force facts cannot constitute a cause of action, but 'may' constitute circumstantial evidence that confirms or vitiates an apparent post-entry into force 'breach', and that pre-entry into force facts can be taken into account in assessing the damages. See also Técnicas Medioambientales Tecmed SA v. United Mexican States, ICSID Case No. ARB (AF)/00/2, Award (29 May 2003) [68] (Tecmed v. Mexico).

14 Impregilo SpA v. Islamic Republic of Pakistan, ICSID Case No. ARB/03/3, Decision on Jurisdiction (22 April 2005) [309]. See also Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v. The Government of Mongolia, UNCITRAL, Award on Jurisdiction and Liability (28 April 2011) [434–441] (Paushok v. Mongolia); WA Investments-Europa Nova Limited v. The Government of the Czech Republic, PCA Case No. 2014-19, Award (15 May 2019) [360-361]. For commentary, see Douglas (footnote 5) page 329; Kenneth J Vandevelde, Bilateral Investment Treaties: History, Policy, and Interpretation, Oxford: Oxford University Press, 2010, page 175; Noah Rubins and Ben Love, 'The Scope of Application of International Investments Agreements: Ratione Temporis' in Marc Bungenberg and others (eds), International Investment Law: A Handbook, 2015, page 483; Veijo Heiskanen, 'Entretemps: Is There a Distinction Between Jurisdiction Ratione Temporis and Substantive Protection Ratione Temporis?' in Yas Banifatemi (ed.), Jurisdiction in Investment Treaty Arbitration, JurisNet LLC and International Arbitration Institute, 2018, pages 297–320.

15 Philip Morris v. Australia (footnote 8) [528].

16 Douglas (footnote 5) pages 341–342; Société Générale (footnote 10) [94]; Walter Bau v. Thailand (footnote 10) [9.84]; ABCI Investments NV v. Republic of Tunisia, ICSID Case No. ARB/04/12, Decision on Jurisdiction (18 February 2011) [178]; Paushok v. Mongolia (footnote 14) [491].

17 Renco v. Peru II (footnote 12) [146].

18 Société Générale (footnote 10) [92]; MCI Power Group LC and New Turbine Inc v. Republic of Ecuador, ICSID Case No. ARB/03/6, Award (31 July 2007) [93] (MCI v. Ecuador); Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12, Decision on the Respondent's Jurisdictional Objections (1 June 2012) [2.105] (Pac Rim v. El Salvador).

19 Chevron Corporation (USA) and Texaco Petroleum Corporation (USA) v. The Republic of Ecuador [I], PCA Case No. 34877, Interim Award (1 December 2008) [282–284] (Chevron v. Ecuador); Walter Bau v. Thailand (footnote 10) [12.26, 12.36–12.37, 13.1(f)].

20 Walter Bau v. Thailand (footnote 10) [13.1(a), 13.1(f), 13.2, 14.1].

21 James Crawford, State Responsibility: The General Part, Cambridge: Cambridge University Press, 2013, page 259; see also ILC Article 14(2) in Crawford (footnote 4) page 135.

22 See commentary to this Article, which clearly specifies this point, in International Law Commission, 'Draft Articles on the Law of Treaties with commentaries',1996, YBILC Volume II, pages 187 and 212.

23 Crawford (footnote 21) page 259; see also ILC Article 14(2) in Crawford (footnote 4) page 135.

24 Marvin Roy Feldman Karpa v. United Mexican States, ICSID Case No. ARB(AF)/99/1, Interim Decision on Preliminary Jurisdictional Issues (6 December 2002) [62]; Mondev v. United States (footnote 10) [69–70]; Tecmed v. Mexico (footnote 12) [66]; SGS Société Générale de Surveillance SA v. Republic of the Philippines, ICSID Case No. ARB/02/6, Decision on Jurisdiction (29 January 2004) [166] (SGS v. Philippines).

25 SGS v. Philippines (footnote 24) [43, 167].

26 Pac Rim v. El Salvador (footnote 18) [3.43].

27 Chevron v. Ecuador (footnote 19) [298]; see also Rubins and Love (footnote 14) page 484.

28 ILC Article 15, in Crawford (footnote 4) page 141. See also El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15, Award (31 October 2011) [518].

29 Global Telecom Holding S.A.E. v. Canada, ICSID Case No. ARB/16/16, Award (27 March 2020) [411-412].

30 Stanimir A Alexandrov, 'The “Baby Boom” of Treaty-Based Arbitrations and the Jurisdiction of ICSID Tribunals: Shareholders as “Investors” and Jurisdiction Ratione Temporis', 2005, 4 Law & Prac. Int'l Cts. & Tribunals 19, page 53.

31 Spence v. Costa Rica (footnote 13) [208], holding that composite acts 'cannot without more renew the limitation period as this would effectively denude the limitation clause of its essential purpose, namely, to draw a line under the prosecution of historic claims'. See also Ansung Housing Co., Ltd v. People's Republic of China, ICSID Case No. ARB/14/25, Award (9 March 2017) [113]; Rusoro Mining Ltd v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/12/5, Award (22 August 2016) [207–208]. See contra United Parcel Service of America Inc v. Government of Canada, UNCITRAL, Award on the Merits (24 May 2007) [28].

32 VCLT (footnote 3) Article 25; Robert E Dalton, 'Provisional Application of Treaties' in Duncan B Hollis (ed), The Oxford Guide to Treaties, Oxford: Oxford University Press, 2012, page 221; see, for example, the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Arab Republic of Egypt for the promotion and Protection of Investments (adopted 11 June 1975, entered into force 24 February 1976), Article 12.

33 Dalton (footnote 32) page 238–239; Denise Mathy, 'Entry Into Force and Provisional Application of Treaties, Article 25 1969 Vienna Convention' in Olivier Corten and Pierre Klein (eds), The Vienna Conventions on the Law of Treaties: A Commentary, Oxford: Oxford University Press, 2011, page 640; ILC Draft Guidelines on the Provisional Application of Treaties (adopted on first reading in 2018; second reading scheduled for 2020).

34 The Energy Charter Treaty (adopted 17 December 1994, entered into force 16 April 1998) 2080 UNTS 95. See generally Gerhard Hafner, 'The “Provisional Application” of the Energy Charter Treaty' in Christina Binder and others (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer, Oxford: Oxford University Press, 2009 and Tomoko Ishikawa, 'Provisional Application of Treaties at the Crossroads between International and Domestic Law', 2016, 31 ICSID Review pages 270 and 278–81.

35 Hulley Enterprises Limited (Cyprus) v. The Russian Federation, PCA Case No. AA 226, Interim Award on Jurisdiction and Admissibility (30 November 2009) [338, 395]; Yukos Universal Limited (Isle of Man) v. The Russian Federation, PCA Case No. AA 226, Interim Award on Jurisdiction and Admissibility (30 November 2009) [338, 395]; Veteran Petroleum Limited (Cyprus) v. The Russian Federation, PCA Case No. AA 226, Interim Award on Jurisdiction and Admissibility (30 November 2009) [338, 395]. The interpretation of the tribunal in the Yukos cases with regard to Article of the 45 ECT and the provisional application of the treaty was confirmed by the Hague Court of Appeal, in its judgment of 18 February 2020 (Veteran Petroleum Limited et al. v. The Russian Federation, Case No. 200.197.079/01, available at https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2020:234). The court held that a signatory that has not made the declaration referred to in Article 45(2)(a) of the ECT is obliged to apply the treaty provisionally except to the extent that provisional application of one or more provisions of the ECT is contrary to national law, in the sense that the laws or regulations of that state preclude the provisional application of treaty provisions or types or/categories of such provisions.

36 Hulley Enterprises Limited (Cyprus) v. The Russian Federation, PCA Case No. AA 226, Award (18 July 2014) [1585]; Yukos Universal Limited (Isle of Man) v. The Russian Federation, PCA Case No. AA 226, Award (18 July 2014) [1585]; Veteran Petroleum Limited (Cyprus) v. The Russian Federation, PCA Case No. AA 226, Award (18 July 2014) [1585].

37 Petrobart Limited v. The Kyrgyz Republic, SCC Arbitration No. 126/2003, Award (29 March 2005) [Section VIII.2]. The United Kingdom's signature of the ECT bound Gibraltar, as a British overseas territory, and the provisional application of the treaty was engaged, despite the fact that the United Kingdom's later ratification of the ECT excluded Gibraltar.

38 Ioannis Kardassopoulos v. Republic of Georgia, ICSID Case No. ARB/05/18, Decision on Jurisdiction (6 July 2007) [198–204, 247–248]. The ECT's provisional application applied to both Georgia and Greece, even though the dispute concerned measures before the entry into force of the ECT. The tribunal found that Georgia directly expropriated the claimant's investment by means of a decree that was dated more than two years before the ECT entered into force.

39 Laurence Boisson de Chazournes et al, 'Conclusion of Treaties, Art. 18 1969 Vienna Convention' in Corten and Klein (footnote 33), page 370.

40 Tecmed v. Mexico (footnote 13) [70–71].

41 MCI v. Ecuador (footnote 18) [117]. The MCI v. Ecuador award has been sharply criticised by Blanchard, who points to several flaws in the tribunal's use of the non-retroactivity principle when considered against the actual BIT language; see Sadie Blanchard, 'State Consent, Temporal Jurisdiction, and the Importation of Continuing Circumstances Analysis into International Investment Arbitration' (2011) 10 Wash. U. Global Stud. L. Rev. pages 451–453.

42 Oded Besserglik v. Republic of Mozambique, ICSID Case No. ARB(AF)/14/2, Award (28 October 2019) [422–423].

43 See the Agreement between the Government of the Republic of Chile and the Government of the Republic of Peru for the Promotion and Reciprocal Protection of Investments (entered into force 11 August 2001) Article 2, which provides that the treaty 'shall not, however, apply to differences or disputes that arose prior to its entry into force'. Other BITs exclude claims arising from 'events' which occurred prior to its entry into force – see, for example, Agreement between the Swiss Confederation and the Republic of Kosovo on the Promotion and Reciprocal Protection of Investments (entered into force 13 June 2012), Article 2, recently applied in Mabco Constructions SA v. Republic of Kosovo, ICSID Case No. ARB/17/25, Decision on Jurisdiction (30 October 2020).

44 In Salini v. Jordan (footnote 10), the tribunal interpreted the phrase 'any dispute which may arise between one of the contracting parties and the investor of the other contracting Party on investments', holding (at [170]) that '[s]uch language does not cover disputes which may have arisen before the entry into force of the BIT'.

45 Ping An v. Belgium (footnote 10) [189–191].

46 Ping An v. Belgium (footnote 10) [191], considering Tradex Hellas SA v. Republic of Albania, ICSID Case No. ARB/94/2, Decision on Jurisdiction (24 December 1996), page 194, where the tribunal was 'not convinced' that there was such a presumption. For further discussion, see Nick Gallus, The Temporal Scope of Investment Protection Treaties, BIICL, 2009, pages 132–137.

47 Mavrommatis Palestine Concessions (30 August 1924) [90], PCIJ Series A, No. 2, 35 (Mavrommatis Palestine Concessions). Commentators have interpreted this case as supporting the view that unless a treaty specifically prevents it, an international tribunal can take jurisdiction over a dispute arising before its entry into force. See Gallus (footnote 46) page 139; Rubins and Love (footnote 14) page 490.

48 Ping An v. Belgium (footnote 10) [174 et seq.].

49 Mavrommatis Palestine Concessions (footnote 47) [19]. This formulation has been adopted by a number of investment treaty tribunals; see, for example, Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7, Decision of the Tribunal on Objections to Jurisdiction (25 January 2000) [96], STEAG v. Spain, ICSID Case No. ARB/15/4, Decision on Jurisdiction, Liability and Decisions on Quantum (8 October 2020) [378]

50 Empresas Lucchetti SA and Lucchetti Peru SA v. The Republic of Peru, ICSID Case No. ARB/03/4, Award (7 February 2005) [50].

51 id. [53].

52 ibid.

53 Jan de Nul NV and Dredging International NV v. Arab Republic of Egypt, ICSID Case No. ARB/04/13, Decision on Jurisdiction (16 June 2006) (Jan de Nul v. Egypt).

54 Jan de Nul v. Egypt (footnote 53) [59, 128]. See also, for example, Renée Rose Levy and Gremcitel SA v. Republic of Peru, ICSID Case No. ARB/11/17, Award (9 January 2015) [167], Philip Morris v. Australia (footnote 8) [532] and Lao Holdings NV v. The Lao People's Democratic Republic, ICSID Case No. ARB(AF)/12/6, Decision on Jurisdiction (21 February 2014) [124].

55 Iona Micula, Viorel Micula and Others v. Romania (2), ICSID Case No. ARB/14/29, Award, 5 March 2020, [299].

56 Rudolf Dolzer and Margrete Stevens, Bilateral Investment Treaties, Martinus Nijhoff, 1995, page 47. Of the sample of 2,061 treaties reviewed by Gordon and Pohl, 97 per cent contain provisions extending some or all effects of the treaty beyond termination for a fixed 'survival' period, with the average period being 12.5 years: see Kathryn Gordon and Joachim Pohl, 'Investment Treaties over Time – Treaty Practice and Interpretation in a Changing World', OECD Working Papers on International Investment, 2015/02, OECD Publishing, pages 18–19. Under the United States–Mexico–Canada Agreement (USMCA), investors will remain able to bring claims relating to investments made under NAFTA for three years following NAFTA's termination: see USMCA, Annex 14-C, paragraph 3.

57 As at September 2014, only 19 treaties had reportedly been terminated unilaterally, and two consensually (all but three since 2012): see Kathryn Gordon and Joachim Pohl (footnote 59).

58 For instance, reports suggest that in the past five years states, including Ecuador, India, Indonesia and South Africa, have served notices to terminate large proportions of their BITs.

59 Agreement for the termination of Bilateral Investment Treaties between the Member States of the European Union, OJ L 169, 29.05.2020. The Termination Agreement has to date been ratified by twelve States, with BITs between any of those States being terminated as of the date of entry into force for both States.

60 European Commission Statement, EU Member States agree on a plurilateral treaty to terminate bilateral investment treaties, 24 October 2019.

61 Case C-284/16 Slowakische Republik v. Achmea BV, Judgment, 6 March 2018.

62 See, by way of example, Hydro Energy 1 and Hydroxana Sweden v. Spain, ICSID Case No. ARB/15/42, Decision on Jurisdiction, Liability and Directions on Quantum (9 March 2020) [502]; Raiffeisen v. Croatia, ICSID Case No. ARB/17/34, Decision on Respondent's Jurisdictional Objections (30 September 2020) [251–253].

63 Termination Agreement, Article 9.

64 Termination Agreement, Articles 2 and 3.

65 The Czech Republic, Indonesia and Peru have purported to terminate treaties in this way, sometimes first amending the BIT to remove the survival clause before terminating.

66 For discussion, see, for example, D Bray and S Kapoor, 'Agreement on the Termination of Intra-EU BITs: Sunset in Stone?', Kluwer Arbitration Blog, 4 November 2020; G Adolfo and G Duque, 'The Termination Agreement of Intra-EU Bilateral Investment Treaties: A Spaghetti-Bowl with Fewer Ingredients and More Questions', Journal of International Arbitration (Scherer (ed.)) Dec 2020.

67 See, for example, UNCTAD, 'Denouncing International Agreements – A Way Out of Arbitration?', TDM 8(1) (February 2011); Christoph Schreuer, 'Denunciation of the ICSID Convention and Consent to Arbitration', in Michael Waibel and others (eds), The Backlash against Investment Arbitration, Kluwer Law International, 2010; Sébastien Manciaux, 'Bolivia's Withdrawal from ICSID', TDM 4(5) (2007).

68 Venoklim Holding BV v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/12/22, Award (3 April 2015), [63]. The majority of the tribunal declined jurisdiction on the grounds that the Venezuelan Investment Law (VIL), under which Venoklim's claims were originally brought, could not alone constitute Venezuela's consent to arbitration and Venoklim was not an international investor under the VIL. Venoklim has since filed a separate claim against Venezuela relating to the same expropriation, this time under the Netherlands–Venezuela BIT (ICSID Case No. ARB(AF)/17/4), in which the tribunal was constituted in March 2018.

69 Blue Bank International & Trust Ltd. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/12/20, Award (26 April 2017) [119] (Blue Bank v. Venezuela). See also Tenaris SA y Talta-Trading Marketing Sociedade Unipessoal Lda v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/12/23, Award (12 December 2016) [144]; Transban Investments Corp. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/12/24, Award (22 November 2017) [84].

70 Fábrica de Vidrios Los Andes, C.A. and Owens-Illinois de Venezuela, C.A. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/12/21, Award (13 November 2017), [250]–[306].

71 id. [273].

72 The ad hoc Committee's decision has not been published: see L. Bohmer, Reasons Revealed as to why an ad hoc Committee has Upheld Restrictive Reading of ICISD Denunciation Provisions, IA Reporter, 27 November 2019.

73 Blue Bank v. Venezuela (footnote 69) Separate Opinion of Christer Söderlund [45].

74 See, for example, Emmanuel Gaillard and Yas Banifatemi, 'The Denunciation of the ICSID Convention' (2007) (122) New York Law Journal, page 237. For a recent discussion, see A. Rajagoplan, 'Denunciation of ICSID Convention: Re-Visiting Mr. Söderlund's Separate Opinion', Kluwer Arbitration Blog, 31 May 2020.

75 Christian J Tams, 'Waiver, Acquiescence, and Extinctive Prescription' in James Crawford and others (eds), The Law of International Responsibility (Oxford University Press 2010) page 1045; Blanchard (footnote 41) page 459; Timur Abushakhmanov, 'Extinctive Prescription in Investor-State Dispute Settlement', New Horizons of International Arbitration, Issue 6, 2020.

76 Salini Impregilo S.p.A. v. Argentine Republic, ICSID Case No. ARB/15/39, Decision on Jurisdiction and Admissibility (23 February 2018) [90–91].

77 See ILC Draft Articles on State Responsibility, 2001, YBILC Volume II, Part II, Article 45, page 122, n. 8 (recognising application of a form of laches). But cf. Rubins and Love (footnote 14) page 491; Blanchard (footnote 41) page 459. See also Joachim Pohl, Kekeletso Mashigo and Alexis Nohen, 'Dispute settlement provisions in international investment agreements', OECD Working Papers on International Investment 2012/2, pages 18–19.

78 North American Free Trade Agreement (entered into force 1 January 1994) Article 1116(2). In William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon Delaware Inc v. Government of Canada, PCA Case No. 2009-04, Award on Jurisdiction and Liability (17 March 2015), the tribunal observed that Article 1116(2) does not demand a full or precise knowledge of the alleged breach and loss or damage by the investor (id. [274–275]) and it also maintained that facts that occurred prior to the time bar can still be considered as background or context (id. [282]); see also the cases cited above in footnote 28, and Resolute Forest Products Inc. v. Government of Canada, PCA Case No. 2016-13, Decision on Jurisdiction and Admissibility (30 January 2018) [153–154, 163, 178–179]. Under the modified regime contained in the USMCA, the limitation period for covered claims is four years: see USMCA, Article 14.D.5(1)(c).

79 Ansung Housing Co., Ltd. v. People's Republic of China, ICSID Case No. ARB/14/25, Award (9 March 2017). See, also, Nissan Motor Co., Ltd v. The Republic of India, PCA Case No. 2017-37, Decision on Jurisdiction (29 April 2019) [323] (addressing the three-year limitation period under Article 96(9) of the Comprehensive Economic Partnership Agreement between India and Japan).

80 Carlos Ríos and Francisco Ríos v. Republic of Chile, ICSID Case No. ARB/17/16, Award (11 January 2021) [180].

81 Eli Lilly and Company v. Government of Canada, ICSID Case No. UNCT/14/2, Final Award (16 March 2017) [171–173]; Bay View Group LLC and the Spalena Company LLC v. Republic of Rwanda, ICSID Case No. ARB/18/21, Procedural Order No. 2 on Bifurcation (28 June 2019) [43] (where the tribunal decided the limitation cut-off date as a preliminary question in the context of a bifurcation application, without foreclosing the possibility of revisiting that determination).

82 Ríos v. Chile (footnote 80) [190].

83 See Wena Hotels LTD v. Arab Republic of Egypt, ICSID Case No. ARB/98/4, Award (8 December 2000) [104–105], the tribunal also refused to apply the domestic statute of limitations, holding that, even under Article 42 of the ICSID Convention, international law takes precedence. See also Ioannis Kardassopoulos v. Republic of Georgia, ICSID Case No. ARB/05/18, Award (3 March 2010) [104–106, 261, 264–268].

84 id. [261].

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