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.