Ratione Temporis or Temporal Scope of Investment Treaties

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. However, facts occurring before the entry into force of a treaty can be taken into consideration in determining whether the treaty was subsequently breached.¹²

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'.¹³ 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.¹⁴

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.¹⁵ 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. Some tribunals have stated that continuous or composite acts prior to the treaty's entry into force are relevant only as factual background.¹⁶ Others have appeared to give them more weight.¹⁷ Acts constituting a breach, along with damages, may be limited to those that post-date the treaty's entry into force.¹⁸

A continuous act is defined as a single act that extends over time and breaches an international obligation throughout.¹⁹ Article 28 of the VCLT supports the relevance of continuous acts despite the principle of non-retroactivity.²⁰ The same is true of Article 14(2) of the ILC Articles.²¹ A number of tribunals have taken a similar approach.²² Acts found to be continuous include the non-payment of a contractually specified amount,²³ the continued withholding of permits and concessions,²⁴ and a continuing delay by national courts.²⁵

A composite act is an act composed of a 'series of actions or omissions defined in aggregate as wrongful'.²⁶ A composite act does not 'occur' until the completion of the series. Tribunals have found it sufficient that the point of completion takes place after the effective date of the treaty.²⁷ 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.²⁸

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 two contexts. First, where the treaty is provisionally applicable; and second, on the basis that states should refrain from committing acts that defeat the object and purpose of the signed treaty.

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.²⁹ In those cases, the treaty will be binding, unless the treaty provides otherwise or it is otherwise agreed.³⁰

Provisional application has been addressed in cases concerning Article 45 of the Energy Charter Treaty (ECT).³¹ 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.³² Ultimately, Russia was held to be liable for breach of the expropriation provision.³³ The tribunals in Petrobart v. Kyrgyzstan³⁴ and Kardassopoulos v. Georgia took a similar approach.³⁵

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.³⁶ 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.³⁷ 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.³⁸

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, explicitly³⁹ or implicitly,⁴⁰ 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,⁴¹ while others have rejected the existence of any such presumption.⁴² The Ping An tribunal expressed doubt as to whether Mavrommatis Palestine Concessions⁴³ stood for 'a principle that there is a presumption that the jurisdiction of a tribunal extends to disputes which arose prior to its establishment'.⁴⁴

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'.⁴⁵ 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'⁴⁶ or if the disputes had the same 'origin or source'.⁴⁷ It considered the subject matter, origin and source of both disputes to be insufficiently different for it to accept jurisdiction.⁴⁸ By contrast, in Jan de Nul v. Egypt,⁴⁹ 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.⁵⁰

This question sharply divided the tribunal regarding the second claimant in Eurogas, where the BIT at issue applied only to disputes 'which [have] arisen not more than three years prior to its entry into force'.⁵¹

The majority considered what mattered were 'the real causes of the dispute',⁵² holding that the transgression complained of was the original reassignment of the claimant's mining rights four years before the BIT took effect, and subsequent actions of the Slovak authorities merely maintained the effects of this. Professor Gaillard's dissent advocated a broader view, concluding that an analysis of 'all the factual and legal circumstances leading to the disagreement brought before the tribunal' revealed that later conduct of the authorities (which included ignoring court decisions quashing the reassignment) in fact constituted the 'definitive reassignment' and thus formed part of the dispute between the parties, meaning the tribunal should accept jurisdiction.⁵³

V IMPACT OF THE TERMINATION OF TREATIES

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

Of increasing prominence are temporal issues surrounding termination of BITs. Such terminations have historically been rare,⁵⁴ but a growing number of states have served notices to terminate or threatened to do so, often due to the existence of or preference for multilateral investment protection arrangements.⁵⁵ EU Member States have moved or undertaken to terminate their intra-EU BITs in line with the European Commission's position, and consequent upon the CJEU's decision in the Achmea case,⁵⁶ which held that the Treaty on the Functioning of the European Union precluded the investor–state arbitration provision of the Netherlands–Slovakia BIT.⁵⁷

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 clause (a survival clause) provides for treaty protections to continue after termination for existing investments, usually for between 10 and 15 years.⁵⁸ There are examples of states purporting to disapply survival clauses in cases of termination by mutual consent,⁵⁹ albeit the effectiveness of this appears not to have been tested before any tribunal.⁶⁰

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.⁶¹ 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.⁶² The Blue Bank v. Venezuela tribunal had no hesitation in agreeing.⁶³ 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.⁶⁴ 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.⁶⁵ It therefore declined jurisdiction over the dispute.⁶⁶

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.⁶⁷ Some commentators have concurred with Söderlund's view on this question.⁶⁸

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.⁶⁹ 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.⁷⁰ 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.⁷¹

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'.⁷² 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.⁷³ Tribunals can, however, refer to facts occurring outside the limitation period, where relevant.⁷⁴

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.⁷⁵ 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.⁷⁶

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Footnotes

1 Barton Legum is a partner and Obioma Ofoego is an associate at Dentons Europe LLP, and Catherine Gilfedder is a senior associate at Dentons UK and Middle East LLP.

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 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 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].

6 Douglas (n 4) 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 ibid., [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 (n 6) [325].

11 Crawford (n 3) page 131.

12 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).

13 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); Douglas (n 4) page 329; Kenneth J Vandevelde, Bilateral Investment Treaties: History, Policy, and Interpretation (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.

14 Philip Morris v. Australia (n 7) [528].

15 Douglas (n 4) pages 341–342; Société Générale (n 9) [94]; Walter Bau v. Thailand (n 9) [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 (n 13) [491].

16 Société Générale (n 9) [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).

17 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 (n 9) [12.26, 12.36–12.37, 13.1(f)].

18 Walter Bau v. Thailand (n 9) [13.1(a), 13.1(f), 13.2, 14.1].

19 James Crawford, State Responsibility: The General Part (Cambridge University Press 2013) page 259; see also ILC Article 14(2) in Crawford (n 3) page 135.

20 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.

21 Crawford (n 19) page 259; see also ILC Article 14(2) in Crawford (n 3) page 135.

22 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 (n 9) [69–70]; Tecmed v. Mexico (n 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).

23 SGS v. Philippines (n 22) [43, 167].

24 Pac Rim v. El Salvador (n 16) [3.43].

25 Chevron v. Ecuador (n 17) [298]; see also Rubins and Love (n 13) page 484.

26 ILC Article 15, in Crawford (n 3) page 141. See also El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15, Award (31 October 2011) [518].

27 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.

28 Spence v. Costa Rica (n 12) [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].

29 VCLT (n 10) Article 25; Robert E Dalton, 'Provisional Application of Treaties' in Duncan B Hollis (ed), The Oxford Guide to Treaties (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.

30 Dalton (n 29) 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 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).

31 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 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.

32 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].

33 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]. The awards referred to in this and in the previous footnote were set aside by The Hague District Court, in its judgment of 20 April 2016 (The Russian Federation v. Yukos Universal Limited et al, joined cases, Case No. C/09/477160 / HA ZA 15-1, available at http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2016:4230). The Court held that the tribunal of the Yukos cases lacked jurisdiction because the Russian Federation had only signed, but never ratified, the ECT. In particular, the Court maintained that Article 45 ECT limits provisional application to only those ECT provisions that are compatible with Russian law. The Court held that this was a public law dispute, which Russian law did not allow to be resolved by arbitration, so Article 26 ECT was not compatible with Russian law. Because, under Russian law, treaties modifying domestic laws can bind the Russian Federation only if ratified (not just signed), the Court concluded that the Russian Federation was not bound by the ECT jurisdictional provisions, thereby depriving the tribunal of its jurisdiction to hear the cases.

34 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.

35 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.

36 Laurence Boisson de Chazournes et al, 'Conclusion of Treaties, Art. 18 1969 Vienna Convention' in Corten and Klein (n 30), page 370.

37 Tecmed v. Mexico (n 12) [70–71].

38 MCI v. Ecuador (n 16) [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.

39 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'.

40 In Salini v. Jordan (n 9), 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'.

41 Ping An v. Belgium (n 9) [189–191].

42 Ping An v. Belgium (n 9) [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.

43 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 (n 42) page 139; Rubins and Love (n 13) page 490.

44 Ping An v. Belgium (n 9) [174 et seq.].

45 Mavrommatis Palestine Concessions (n 43) [19]. This formulation has been adopted by 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].

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

47 ibid., [53].

48 ibid.

49 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).

50 Jan de Nul v. Egypt (n 47) [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 (n 6) [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].

51 EuroGas Inc. and Belmont Resources Inc. v. Slovak Republic (ICSID Case No ARB/14/14), Award (18 August 2017) (EuroGas v. Slovakia).

52 ibid., [453].

53 EuroGa s v. Slovakia (n 51) Dissenting Opinion of Professor Emmanuel Gaillard.

54 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, '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.

55 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.

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

57 See Declaration of the Representatives of the Governments of the Member States of 15 January 2019 on the Legal Consequences of the Judgment of the Court of Justice in Achmea and on Investment Protection in the European Union (signed by 22 Member States); separate declarations were signed by the remaining Member States who disagreed as to the effect of Achmea on the ECT (the January 2019 Declarations).

58 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 (n 54), 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. 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 UMSCA, Annex 14-C, paragraph 3.

59 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.

60 In one of a number of ICSID awards that have held that Achmea does not affect jurisdiction under the ICSID Convention, a tribunal has recently observed that even if Hungary as the respondent state could be said to have implicitly terminated the underlying BIT by acceding to the European Union, the tribunal would still have jurisdiction owing to the survival clause, which neither of the parties had attempted to modify or renegotiate: see UP (formerly Le Chèque Déjeuner) and C.D Holding Internationale v. Hungary, ICSID Case No. ARB/13/35, Award (9 October 2018) [265]. EU Member States have, in the January 2019 Declarations, adopted the position that agreements to arbitrate in intra-EU BITs are inapplicable ab initio and thus sunset provisions do not operate to extend them. For further discussion, see Chrispas Nyombi and Tom Mortimer, 'The turf war between the European Commission and intra-EU BITs: is an end in sight?', Int. A.L.R. 2018, 21(3), 66–79.

61 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).

62 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.

63 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].

64 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].

65 ibid., [273].

66 The Favianca claimants have applied for annulment of the award, ICSID Case No. ARB/12/21, Application for Annulment, 9 March 2018.

67 Blue Bank v. Venezuela (n 64) Separate Opinion of Christer Söderlund [45].

68 See, for example, Emmanuel Gaillard and Yas Banifatemi, 'The Denunciation of the ICSID Convention' (2007) (122) New York Law Journal, page 237.

69 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 (n 38) page 459.

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

71 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 (n 13) page 491; Blanchard (n 38) 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.

72 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 (ibid., [274–275]) and it also maintained that facts that occurred prior to the time bar can still be considered as background or context (ibid., [282]); see also the cases cited above in n 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].

73 Ansung Housing Co., Ltd. v. People's Republic of China, ICSID Case No. ARB/14/25, Award (9 March 2017).

74 Eli Lilly and Company v. Government of Canada, ICSID Case No. UNCT/14/2, Final Award (16 March 2017) [171–173].

75 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].

76 ibid., [261].