Author

Mr Armand Terrien

Independent Counsel - Terrien Avocat

Editors
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Jurisdiction Ratione temporis

I. Definition and distinction

1.

Jurisdiction ratione temporis refers to the effect of time on a Tribunal’s powers pursuant to a Treaty. Such effects are usually directly dictated by express language contained in the applicable Treaty. In the absence of express provisions in such Treaty, Tribunals will decide the issue by reference to customary international law.1

2.

Jurisdiction ratione temporis is distinct from procedural (or admissibility) issues that present a temporal aspect (e.g. whether Claimant has exhausted local remedies, attempted to resolve the dispute amicably, or properly notified Respondent in accordance with the applicable Treaty). It may also be distinguishable from the applicability ratione temporis of the substantive rights granted by a Treaty.2 Finally, temporal issues relating to a State’s withdrawal from ICSID are sometimes referred to as falling under the jurisdiction ratione voluntatis of a Tribunal.

II. Timing of the investment

3.

Investment treaties commonly state that investments made prior to their entry into force are covered investments.3 Where a Treaty is silent on this issue, it is commonly understood that investments made before the Treaty’s entry into force are covered investments as well.4 

4.

Conversely, Tribunals consistently hold that their jurisdiction does not extend ratione temporis to alleged breaches that took place prior to the making of an investment.5

III. Timing of the dispute

A. Principle: non-retroactivity of treaties

5.

In the absence of express language to the contrary, and consistent with Article 28 of the Vienna Convention on the Law of Treaties and Article 13 of the Responsibility of States for Internationally Wrongful Acts, a Treaty cannot apply to acts or facts that occurred prior to its entry into force. Facts occurring before the entry into force of the Treaty may, however, provide circumstantial evidence of a potential breach of the Treaty.6

B. First exception: continuous and composite acts

6.

An act of a State having a continuing character and breaching an international obligation (continuous act)7 or a series of actions or omissions defined in aggregate as wrongful (composite act)8 can trigger liability under a Treaty even if the continuous act started, or the first aggregated act occurred, prior to the entry into force of the Treaty.9 However, where a Treaty provides a time bar for bringing a claim, Tribunals will be reluctant to entertain claims made on such a basis where it appears that the purpose for making such a claim is to circumvent the time bar of the Treaty.10 Certain Tribunals have upheld jurisdiction in a more generous manner.11 However, national courts place heightened scrutiny on such claims.12

C. Second exception: provisional application of a treaty

7.

Contracting parties may agree to provisionally apply a Treaty before it enters into force. This has led Tribunals to retain jurisdiction where a party has signed, but not yet ratified a Treaty.13

8.

Additionally, Tribunals have discussed whether legal security and transparency as enshrined in Article 18 of the Vienna Convention on the Law of Treaties commanded the provisional application of a Treaty, adopting differing approaches, either in favour of taking the fact into account,14 or holding that the principle of good faith could not result to the retroactive application of a Treaty.15

D. Third exception: disputes arising before the entry into force of a treaty

IV. Extinctive prescription

11.

Extinctive prescription provides that a right can be lost, or a claim barred, when not exercised in a timely manner. This is usually expressly provided by a specific provision in the applicable Treaty,20 although Treaties can also be silent on that issue.21 Where a Treaty is silent on this issue, a Tribunal may in rare instances find that a claim is time-barred by operation of customary international law.22 However, Tribunals will generally allow such claims, relying on evidence that they were not abandoned by the Claimant.23 

V. Termination of treaty and withdrawal from ICSID

A. Termination of treaty

12.

Treaties usually include a so-called “sunset clauses" which governs the effects of the termination of a treaty by a contracting State.24 Such clauses extent the protections of the Treaty to investments made before the termination or expiry of the Treaty for an additional period of time, typically ranging from 5 years25 to 20 years.26

13.

Similarly, following the enactment of USMCA in replacement of NAFTA,27 prosecution of existing claims under NAFTA will continue unhindered, and claims arising from investments predating the termination of NAFTA will be available for settlement under NAFTA Chapter 11 for 3 years following termination of NAFTA, i.e. 1 July 2023.

14.

Finally, the mutual termination of intra-EU BITs raises specific issues. (See further Termination of Investment Treaties).

B. Withdrawal from ICSID

15.

Denunciation of the ICSID Convention presents a different, yet related issue. Tribunals have discussed whether withdrawal from ICSID voided a State’s consent to ICSID jurisdiction contained in a Treaty (also known as jurisdiction ratione voluntatis). Discussing the effects of Articles 71 and 72 of ICSID, some Tribunals have determined that they could still retain jurisdiction over claims brought after denunciation but before effective withdrawal,28 while others have declined jurisdiction on the basis that consent could not be perfected after a State had notified its withdrawal.29

16.

Finally, the issue of whether consent to ICSID jurisdiction could still be retained even after effective withdrawal from ICSID remains unsettled.30 

Bibliography

Alexandrov, S.A., The ‘Baby Boom’ of Treaty-Based Arbitrations and the Jurisdiction of ICSID Tribunals: Shareholders as ‘Investors’ and Jurisdiction Ratione Temporis, The Law & Practice of International Courts and Tribunals, Vol. 4, Issue 1, 2005, pp. 19-59.

Blanchard, S., State Consent, Temporal Jurisdiction, and the Importation of Continuing Circumstances Analysis into International Investment Arbitration, Washington University Global Studies Review, Vol. 10, Issue 3, 2011, pp. 419-476.

Dalton, R.E., Provisional Application of Treaties, in Hollis, D.B. (ed.), The Oxford Guide to Treaties, Oxford University Press, 2012, pp. 220-247.

Douglas, Z, The International Law of Investment Claims, Cambridge University Press, 2009.

Gallus, N., The Temporal Scope of Investment Protection Treaties, British Institute of International and Comparative Law, 2009.

Heiskanen, V., Entretemps: Is There a Distinction Between Jurisdiction Ratione Temporis and Subtantive Protection Ratione Temporis, in Banifatemi, Y. (ed.), Jurisdiction in Investment Treaty Arbitration, IAI Series on International Arbitration No. 8, Juris Publishing, 2018, pp. 297- 320.

Rubins, N. and Love, B., The Scope of Application of International Investments Agreements: Ratione Temporis, in Bungenberg, M., Griebel, J., Hobe, S. and Reinisch, A. (eds.), International Investment Law: A Handbook, Nomos, 2015, pp. 481-494.

Vandevelde, K. J., Bilateral Investment Treaties: History, Policy, and Interpretation, Oxford University Press, 2010.

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