Originally from Revolution in the International Rule of Law: Essays in Honor of Don Wallace, Jr.

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I. Introduction

The temporal jurisdiction conferred by a given treaty constitutes one
of the most difficult issues in international law, and investment treaties
present no exception. In general, investment treaty tribunals have
adopted the basic rule that a State's obligations under an investment
treaty do not extend to periods before a treaty's entry into force. Yet this
rule is subject to qualification, in particular with respect to the question
of temporal jurisdiction, an issue that is further complicated by difficult
factual questions and specific language in many bilateral investment
treaties ("BITs").

Tribunals have accordingly produced a body of inconsistent case law
that often falls short of clearly delineating basic temporal concepts. Some
decisions have distinguished between the temporal application of an
investment treaty's substantive provisions and the temporal jurisdiction
of the same treaty, which is usually defined by the treaty's dispute
resolution clause. Still, other decisions have applied purportedly general
rules of international law articulated in other decisions applying specific
treaty language to derive the supposed rule in question. These
inconsistencies in the jurisprudence underscore the importance of
examining specific treaty language when reconciling temporal issues.
This chapter provides an overview of the basic temporal rules and
issues that arise in investment treaty cases, noting contrary jurisprudence
where applicable. This chapter addresses: (i) jurisdiction to consider acts
before a treaty’s entry into force; (ii) jurisdiction over disputes that arise
before a treaty’s entry into force; (iii) the availability of arguments of
laches or extinction to preclude jurisdiction over a claim; and (iv) the
effect of termination and survival clauses in investment treaties.