Temporal Issues Relating to BIT Dispute Resolution

Abstract

Abstract An investor–State tribunal formed under a bilateral investment treaty (BIT) may be called upon to determine its jurisdiction ratione temporis based on various ‘critical dates’ such as: the date of entry into force of the BIT; the date when the investment was made; the date when the investor acquired the requisite nationality; the date of the alleged breach; the date when the investor first acquired knowledge of the alleged breach and of its loss; and/or the date when the dispute arose. When confronted with such temporal issues, tribunals over the past two decades have often reverted to the ‘secondary’ rules found in the International Law Commission’s 2001 Articles on the Responsibility of States for Internationally Wrongful Acts, and found in the law of treaties. This article identifies a series of propositions that may be extracted from recent investor–State jurisprudence concerning those secondary rules, with particular attention to application of the rule on non-retroactivity. Except in relatively limited situations, tribunals appear disinclined to find temporal jurisdiction over breaches or disputes that are based on pre-BIT acts. Consequently, this article considers as well recent jurisprudence on whether the host State’s alleged breach has a continuing or composite character, thus overcoming any temporal bar. While it would be excessive to say that the secondary rules in this area have provided the perfect means for addressing temporal issues, they appear to have generated a comprehensible framework within which investor–State tribunals are successfully operating.