Legal questions concerning the temporal application of Treaties in international investment arbitration cases

The scope of treaties is subject to various limitations. One such limitation is the temporal applicability of a treaty. The starting point in many disputes relating to the temporal elements of the law of treaties is laid down in Article 28 Vienna Convention on the Law of Treaties (VCLT), which provides the general rule that treaties do not have retroactive effect. Despite the clear language of this provision, a review of the case law developed by international investment tribunals evidences that many unsettled questions remain insofar as the temporal aspects of the application of investment treaties are concerned. This chapter examines three different elements of temporality and assesses the singularities of international investment arbitration vis-à-vis general international law in this regard: (a) entry into force and nonretroactivity of the treaty; (b) obligations of States pending the entry into force of the treaty; and (c) temporal issues pertaining to the termination of a treaty. As is common for many areas of international law, international investment tribunals have not yet developed a clear and consistent case law on the temporal limitations of investment treaties. However, it should also be emphasised that the solutions offered by many international investment tribunals have demonstrated due regard for the principles laid down in the VCLT and are, in many aspects, compatible with rules of customary international law. In particular, international investment tribunals have repeatedly endorsed the principle provided by Article 28 VCLT and have declined to exercise jurisdiction if the text of the treaty, implicitly or explicitly, excludes disputes arising prior to the entry into force of the treaty. Although certain points of departure remain, this trend serves as a good starting point in the endeavour to further develop the cohesiveness of international investment law with public international law.