Originally from  Jurisdiction in Investment Treaty Arbitration - IAI Series No. 8

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INTRODUCTION

In this article I first propose to revisit the nature of the cause of action in investment treaty arbitration with a view to defining its constituent elements.  Central to this investigation is the question of the identity of the beneficiary of the substantive and procedural rights under the investment treaty.  In this first part I also consider whether damage or an injury to the protected investment is a necessary condition to complete the cause of action and whether the concept of damage is strictly material or can extend to non-material or moral harm.

In the second part of the article I rely upon the insights drawn from the excursus on the anatomy of the cause of action to examine certain temporal problems in investment treaty arbitration, namely: (i) the scope of ratione temporis jurisdiction in respect of claims based upon investment protection obligations, (ii) the application of limitation of actions or the doctrine of extinctive prescription, (iii) the concept of a continuing wrongful act, and (iv) the legal consequences of the restructuring of an investment depending upon the timing thereof.