The provisional application of a treaty, or of part of a treaty, is a mechanism available to States and international organizations to give effect to all or some of the provisions of a treaty pending entry into force. The possibility and the principles governing provisional application are addressed in Article 25 of the Vienna Convention on the Law of Treaties1 and Article 25 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. Although both provisions are of central importance for provisional application, they do “not necessarily reflect all aspects of contemporary practice on the provisional application of treaties”.2
The International Law Commission included the topic of “Provisional Application of Treaties” in its programme of work in 2012. In 2018, the International Law Commission adopted its Draft Guide to Provisional Application, containing 12 Draft Guidelines and commentaries thereto, in first reading.3 The Draft Guide is aimed at providing “assistance to States, international organizations and other users concerning the law and practice on the provisional application of treaties” and at directing “States, international organizations and other users to answers that are consistent with existing rules and most appropriate for contemporary practice”.4
Provisional application of a treaty is optional. It needs the agreement of the States or international organisations concerned.5 Such agreement can be included in the treaty itself, or provided in any other manner. States and international organisations can also agree on other conditions, like the conformity of provisional application with internal law, or provide for specific opting out mechanisms. Article 45 of the Energy Charter Treaty contains such further conditions that gave rise to difficulties in the Yukos cases.6
Hulley Enterprises Limited (Cyprus) v. Russia, PCA Case No. 2005-03/AA226, Interim Award on Jurisdiction and Admissibility, 30 November 2009, paras. 244-398; Yukos Universal Limited (Isle of Man) v. Russia, PCA Case No. 2005-04/AA227, Interim Award on Jurisdiction and Admissibility, 30 November 2009, paras. 244-398; Veteran Petroleum Limited (Cyprus) v. Russia, PCA Case No. 2005-05/AA228, Interim Award on Jurisdiction and Admissibility, 30 November 2009, paras. 244-398; Veteran Petroleum Limited v. The Russian Federation, PCA Case No. 2005-05/AA228, Judgment of the Hague District Court, 20 April 2016, para. 5.6-5.95; Hulley Enterprises Limited (Cyprus) v. Russia, PCA Case No. 2005-03/AA226, Judgment of Hague District Court, 20 April 2016, paras. 5.6-5.95; Yukos Universal Limited (Isle of Man) v. Russia, PCA Case No. 2005-04/AA227, Judgment of Hague District Court, 20 April 2016, paras. 5.6-5.95; Veteran Petroleum Limited v. The Russian Federation, PCA Case No. 2005-05/AA228, Judgment of the Hague Court of Appeal (Unofficial English Translation), 18 February 2020, paras. 4.5.1-4.6.2; Hulley Enterprises Limited (Cyprus) v. Russia, PCA Case No. 2005-03/AA226, Judgment of the Hague Court of Appeal, 18 February 2020, paras. 4.5.1-4.6.2; Yukos Universal Limited (Isle of Man) v. Russia, PCA Case No. 2005-04/AA227, Judgment of the Hague Court of Appeal (Unofficial English Translation), 18 February 2020, paras. 4.5.1-4.6.2; Veteran Petroleum Limited v. The Russian Federation, PCA Case No. 2005-05/AA228, Judgment of the High Court of Justice of England and Wales [2021] EWHC 894, 14 April 2021, paras. 84-98; Yukos Universal Limited (Isle of Man) v. The Russian Federation, PCA Case No. 2005-04/AA227, Judgment of the High Court of Justice of England and Wales [2021] EWHC 894, 14 April 2021, paras. 84-98; Hulley Enterprises Ltd. v. Russian Federation, PCA Case No. 2005-03/AA226, Judgment of the High Court of Justice of England and Wales [2021] EWHC 894, 14 April 2021, paras. 84-98; Yukos Capital SARL v. The Russian Federation, PCA Case No. 2013-31, Interim Award on Jurisdiction, 18 January 2017, paras. 243-294; Hulley Enterprises Ltd. v. Russian Federation, PCA Case No. 2005-03/AA226, Judgment of the Supreme Court of the Netherlands, 5 November 2021, para. 5.2.8; Yukos Universal Limited (Isle of Man) v. The Russian Federation, PCA Case No. 2005-04/AA227, Judgment of the Supreme Court of the Netherlands, 5 November 2021, para. 5.2.8; Veteran Petroleum Limited v. The Russian Federation, PCA Case No. 2005-05/AA228, Judgment of the Supreme Court of the Netherlands, 5 November 2021, para. 5.2.8; Yukos Capital SARL v. The Russian Federation, PCA Case No. 2013-31, Decision of the Swiss Federal Tribunal 4A_492/2021, 24 August 2022, paras. 6.2.1.-6.4.12.
It is well established that the provisional application of a treaty can be based on a provision in the treaty in question. Article 25(1)(a) of the Vienna Conventions on the Law of Treaties codifies this possibility. The Draft Guide to Provisional Application also accepts this legal basis.7 Some bilateral investment instruments include provisions for provisional application (or provisional entry into force).8 Article 45(1) of the Energy Charter Treaty contains an agreement between all signatory parties to apply the provisions of the Energy Charter Treaty provisionally under some conditions.9 Other multilateral or plurilateral investment instruments also contain provisions on provisional application.10
Convention between the Government of the Kingdom of the Netherlands and the Government of the Tunisian Republic concerning the Encouragement of Capital Investment and the Protection of Property, signed on 23 May 1963, entered into force on 19 December 1964, Article 8; Agreement between The Kingdom of Belgium and the Republic of Indonesia on the Encouragement and Reciprocal Protection of Investments, signed on 15 January 1970, entered into force on 17 June 1972, Article 14; Agreement between the Republic of Korea and the Belgo-Luxemburg Economic Union on the Encouragement and Reciprocal Protection of Investments, signed on 20 December 1974, entered into force on 3 September 1976, Article 12; Convention between the Republic of Tunisia and the Belgo-Luxembourg Economic Union concerning the Encouragement of Capital Investment and the Protection of Property, signed on 15 July 1964, entered into force on 9 March 1966, Article 7; Agreement Between the Belgo-Luxemburg Economic Union and the Arab Republic of Egypt for the Encouragement and Reciprocal Protection of Investments, signed on 28 February 1977, entered into force on 20 September 1978, Article XIII(1); 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, signed on 11 June 1975, entered into force on 24 February 1976 Article 12; Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Morocco for the Promotion and Protection of Investments, signed on 30 October 1990, entered into force on 14 February 2002, Article 14.
Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Decision on Jurisdiction, 8 February 2005, para. 140; Ioannis Kardassopoulos v. Georgia, ICSID Case No. ARB/05/18, Decision on Jurisdiction, 6 July 2007, para. 202-203; Hulley Enterprises Limited (Cyprus) v. Russia, PCA Case No. 2005-03/AA226, Interim Award on Jurisdiction and Admissibility, 30 November 2009, para. 244; Yukos Universal Limited (Isle of Man) v. Russia, PCA Case No. 2005-04/AA227, Interim Award on Jurisdiction and Admissibility, 30 November 2009, para. 244; Veteran Petroleum Limited (Cyprus) v. Russia, PCA Case No. 2005-05/AA228, Interim Award on Jurisdiction and Admissibility, 30 November 2009, para. 244; Anatolie Stati and others v. Republic of Kazakhstan, SCC Case No. V116/2010, Award, 19 December 2013, para. 746; Luxtona Limited v. The Russian Federation, PCA Case No. 2014-09, Interim Award on Respondent's Objections to the Jurisdiction of the Tribunal, 22 March 2017, paras. 154-156.
EU-Korea FTA, signed on 6 October 2010, entered into force on 1 July 2011, Article 15.10(5)(a); Economic Partnership Agreement the CARIFORUM States, of the one part, and the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, 22 March 2019, Article 242(3); Investment Protection Agreement between the European Union and its Member States, of the one part, and the Republic of Singapore of the other part, 19 October 2019, Article 4.15(4).
States or international organisations concerned can also agree to apply a treaty provisionally in a separate treaty or through any other means of arrangement. Article 25(1)(b) of the Vienna Conventions on the Law of Treaties acknowledges this.11 The International Law Commission has endorsed a similar view.12 Some treaties specifically provide for the possibility to agree, separately, on provisional application13 or to make declarations to that effect.14 But even if the treaty does not contain any provision concerning its provisional application, States have agreed to apply the provisions of the treaty on a provisional basis and pending entry into force, for instance, through exchange of notes,15 or through unilateral declarations accepted by the other relevant party.16 The form of the agreement is less significant than the intention of the States or international organisations concerned.17
Vienna Convention on the Law of Treaties (1969), adopted on 23 May 1969, entered into force on 27 January 1980, Article 25(1)(b); Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986), adopted on 21 March 1986, Article 25(1)(b).
Investment Protection Agreement between the European Union and its Member States, of the one part, and the Socialist Republic of Viet Nam, of the other part, signed on 30 June 2019, Article 4.13(4); Investment Protection Agreement between the European Union and its Member States, of the one part, and the Republic of Singapore of the other part, signed on 19 October 2018, Article 4.15(4)(a).
Treaty between the Federal Republic of Germany and the Republic of Singapore concerning the Promotion and Reciprocal Protection of Investments, signed on 3 October 1973, and exchange of notes; Border Timbers Limited, Timber Products International (Private) Limited, and Hangani Development Co. (Private) Limited v. Republic of Zimbabwe, ICSID Case No. ARB/10/25, Award, 28 July 2015, paras. 338-341.
Unless the treaty provides otherwise, its provisional application creates legally binding obligations and rights to apply the treaty as if it was already in force.18 The violation of the provisions of the treaty applied provisionally may entail international responsibility in the same way as if the treaty was in force.19 This has been accepted by decisions of arbitral tribunals.20
Ioannis Kardassopoulos v. Georgia, ICSID Case No. ARB/05/18, Decision on Jurisdiction, 6 July 2007, para. 211; Ioannis Kardassopoulos v. Georgia, ICSID Case No. ARB/05/18, Award, 3 March 2010, para. 241; Veteran Petroleum Limited (Cyprus) v. Russia, PCA Case No. 2005-05/AA228, Interim Award on Jurisdiction and Admissibility, 30 November 2009, para. 391; Yukos Universal Limited (Isle of Man) v. Russia, PCA Case No. 2005-04/AA227, Interim Award on Jurisdiction and Admissibility, 30 November 2009, para. 391; Hulley Enterprises Limited (Cyprus) v. Russia, PCA Case No. 2005-03/AA226, Interim Award on Jurisdiction and Admissibility, 30 November 2009, para. 391; Yukos Capital SARL v. The Russian Federation, PCA Case No. 2013-31, Interim Award on Jurisdiction, 18 January 2017, paras. 194-205.
Provisional application ends if the treaty enters into force.21 Tribunals have considered that the entry into force of a treaty in respect of some territories does not necessarily entail the termination of provisional application of the same treaty in respect of other territories, to which the treaty continues to apply on a provisional basis.22 Unless the treaty provides or the States and international organisations concerned have agreed otherwise,23 provisional application can also be terminated through a notification of the State or the international organisation concerned that it does not intend to become a party to the treaty.24 Some investment instruments contain provisions that extend the protection of investors and investments in case of the termination of provisional application (Sunset clauses).25
Energy Charter Treaty, signed on 17 December 1994, entered into force on 16 April 1998, Article 45(3)(a); Hulley Enterprises Limited (Cyprus) v. Russia, PCA Case No. 2005-03/AA226, Interim Award on Jurisdiction and Admissibility, 30 November 2009, para. 338; Yukos Universal Limited (Isle of Man) v. Russia, PCA Case No. 2005-04/AA227, Interim Award on Jurisdiction and Admissibility, 30 November 2009, para. 338; Veteran Petroleum Limited (Cyprus) v. Russia, PCA Case No. 2005-05/AA228, Interim Award on Jurisdiction and Admissibility, 30 November 2009, para. 338.
Energy Charter Treaty, signed on 17 December 1994, entered into force on 16 April 1998, Article 45(3)(b); Hulley Enterprises Limited (Cyprus) v. Russia, PCA Case No. 2005-03/AA226, Interim Award on Jurisdiction and Admissibility, 30 November 2009, paras. 339, 388; Yukos Universal Limited (Isle of Man) v. Russia, PCA Case No. 2005-04/AA227, Interim Award on Jurisdiction and Admissibility, 30 November 2009, paras. 339, 388; Veteran Petroleum Limited (Cyprus) v. Russia, PCA Case No. 2005-05/AA228, Interim Award on Jurisdiction and Admissibility, 30 November 2009, paras. 339, 388.
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