Principles of International Investment

Law (2nd Edition)

Rudolf Dolzer and Christoph Schreuer

[Link]
95.001.0001
Published: 2012 Online ISBN:
9780191767210 Print ISBN:
9780199651795

Downloaded from [Link] by Bibliotheek van het Vredespaleis user on 14 August 2024
Search in this book

CHAPTER

II Interpretation and Application of Investment Treaties 

Rudolf Dolzer, Christoph Schreuer

[Link] Pages 28–43

Published: November 2012

Keywords: Law of treaties, Treaties, interpretation, Travaux préparatoires, Treaties, application,

International economic law, International investment law, Sources, foundations and principles of
international law, Intertemporal law
Subject: International Economic Law, Arbitration, Law of Treaties, International Trade, Sources,
Foundations and Principles of International Law, Private International Law and Conflict of Laws
Collection: Investment Claims, Oxford Scholarly Authorities on International Law
 1. Interpreting investment treaties

As explained above (see Chapter I.2), investment law is shaped by a variety of treaties. In addition to
bilateral treaties, mostly bilateral investment treaties (BITs), there are regional treaties such as the North
American Free Trade Agreement (NAFTA), the Dominican Republic–Central America–United States Free

Downloaded from [Link] by Bibliotheek van het Vredespaleis user on 14 August 2024
Trade Agreement (CAFTA), and the Energy Charter Treaty (ECT). The Convention on the Settlement of
Investment Disputes between States and Nationals of Other States (ICSID Convention), a multilateral treaty,
is also frequently interpreted and applied.

The interpretation of these treaties takes place mostly by ad hoc tribunals, the composition of which varies
from case to case. This makes it considerably more di cult to develop a consistent case law than in a
permanent judicial institution.

(a) Methods of treaty interpretation

1
Most tribunals start by invoking Article 31 of the Vienna Convention on the Law of Treaties (VCLT) when
2
interpreting treaties. For instance, the Tribunal in Siemens v Argentina stated:

p. 29 Both parties have based their arguments on the interpretation of the Treaty in accordance with 80.
Article 31(1) of the Vienna Convention. This Article provides that a treaty be ‘interpreted in good
faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.’ The Tribunal will adhere to these rules of interpretation
3
in considering the disputed provisions of the Treaty. …

3 Siemens v Argentina, Decision on Jurisdiction, 3 August 2004, para 80.

At times, tribunals will also refer to the supplementary means of interpretation contained in Article 32 of
4 5
the VCLT. The Tribunal in Noble Ventures v Romania, after referring to the general rule of interpretation in
Article 31 of the VCLT, said:

recourse may be had to supplementary means of interpretation, including the preparatory work
and the circumstances of its conclusion, only in order to con rm the meaning resulting from the
6
application of the aforementioned methods of interpretation.

6 At para 50.

A treaty’s object and purpose is among the primary guides for interpretation listed in Article 31 of the VCLT.
In investment treaties, the object and purpose is often sought in their preambles. These preambles highlight
the positive role of foreign investment in general and the nexus between an investment-friendly climate
7
and the ow of foreign investment in particular. A typical contemporary version of a preamble reads:

The Government of X and the Government of Y; desiring to create favourable conditions for greater
investment by nationals and companies of one State in the territory of the other State; recognising
that the encouragement and reciprocal protection under international agreement of such
investments will be conducive to the stimulation of individual business initiative and will increase
8
prosperity in both States; have agreed as follows:

8 See preamble to the UK Model BIT.

 Tribunals have frequently interpreted investment treaties in light of their object and purpose, often by
9 10
p. 30 looking at their preambles. This has led to an interpretation that is favourable to the investor; but this
development has also attracted criticism. In particular, one tribunal warned against over-extending the
11
method of looking at object and purpose.

Closely related to object and purpose is the issue of restrictive or e ective interpretation of treaties. This has
arisen, in particular, in the context of interpreting treaty provisions governing the jurisdiction of tribunals.
Some tribunals seem to have favoured a restrictive interpretation of treaty provisions that led to a limitation
12
of state sovereignty. Others have rejected a restrictive interpretation, at times favouring an interpretation

Downloaded from [Link] by Bibliotheek van het Vredespaleis user on 14 August 2024
13
that gives full e ect to the rights of investors. Most tribunals have distanced themselves from either
14
approach and have advocated a balanced approach to interpretation.

A closer look at some of these decisions would indicate that the professed preference of tribunals for one or
the other method of interpretation should not necessarily be taken at face value. A tribunal’s avowed
15
predilection for a particular approach to interpretation is not always re ected in its actual decision.
Ultimately, what matters is what the tribunal does, not what it says it is doing.

The terms of a treaty are to be interpreted in their context. Under Article 31(2)(b) of the VCLT, context
includes ‘any instrument which was made by one or more parties in connexion with the conclusion of the
16
treaty and accepted by the other parties as an instrument related to the treaty’. In Fraport v Philippines the
Tribunal interpreted the BIT between Germany and the Philippines with the help of the Philippines’
17
Instrument of Rati cation which was exchanged with Germany.

p. 31 (b) Travaux préparatoires

Article 32 of the VCLT treats the travaux préparatoires (preparatory work) to a treaty only as a supplementary
means of interpretation. In practice, resort to travaux préparatoires seems to be determined primarily by
their availability. In the Malaysian Historical Salvors case the ad hoc Committee stated:

courts and tribunals interpreting treaties regularly review the travaux préparatoires whenever they
are brought to their attention; it is mythological to pretend that they do so only when they rst
18
conclude that the term requiring interpretation is ambiguous or obscure.

18 Malaysian Historical Salvors v Malaysia, Decision on Annulment, 16 April 2009, para 57.

The drafting history of the ICSID Convention is documented in detail, readily available and easily accessible
19
through an analytical index. As a consequence, ICSID tribunals frequently have resort to its travaux
préparatoires. By contrast, the negotiating history of BITs is typically not, or only poorly, documented.
Therefore, tribunals do not usually have the possibility of relying on the travaux préparatoires even if they
20
are minded to do so.

The position with NAFTA occupies the middle ground. For a number of years the documents illustrating the
negotiating history were not publicly available. This led to complaints about inequality of arms between a
respondent state which had access to the materials and a claimant investor who did not. In July 2004 the
NAFTA Free Trade Commission announced the release of the negotiating history of Chapter Eleven of the
21
NAFTA dealing with investment.

22
The Tribunal in Methanex v United States stressed the limited relevance of the negotiating history of the
NAFTA in light of Article 32 of the VCLT:

pursuant to Article 32, recourse may be had to supplementary means of interpretation only in the
limited circumstances there speci ed. Other than that, the approach of the Vienna Convention is
 that the text of the treaty is deemed to be the authentic expression of the intentions of the parties;
and its elucidation, rather than wide-ranging searches for the supposed intentions of the parties,
23
is the proper object of interpretation.

23 At Part II, Ch B, para 22. Footnote omitted.

(c) Interpretative statements

Unilateral assertions of the disputing state party, on the meaning of a treaty provision, made in the process

Downloaded from [Link] by Bibliotheek van het Vredespaleis user on 14 August 2024
p. 32 of ongoing proceedings are of limited value. Such statements are likely to be perceived as self-serving
and determined by a desire to in uence the tribunal’s decision in favour of the state o ering the
interpretation.

24
In one case a tribunal sought information from the investor’s home state on certain aspects of a BIT’s
25
interpretation; however, it did not nd the information thus obtained to be of help.

26
In another case the government of the claimant’s nationality (Switzerland) took the unusual step of
writing to ICSID to complain about an interpretation given by an ICSID tribunal. The Swiss Government in a
letter to ICSID’s Deputy Secretary-General also stated that the Swiss authorities were unsure why the
Tribunal had not found it necessary to inquire about their view of the meaning of the provision in the
27
Pakistan-Switzerland BIT.

Some treaties provide for a consultation mechanism concerning their interpretation or application. The BIT
between the Czech Republic and the Netherlands contains such a provision, and the two states parties have
28
issued a joint, non-binding statement which has been taken into account by tribunals. The NAFTA has a
mechanism whereby the Free Trade Commission (FTC)—a body composed of representatives of the three
29
states parties—can adopt binding interpretations of the treaty. The FTC made use of this method in July
2001 in interpreting the concepts of ‘fair and equitable treatment’ and ‘full protection and security’ under
30 31
Article 1105 of the NAFTA. NAFTA tribunals have accepted this interpretation as binding.

BITs do not normally have institutional mechanisms to obtain authentic interpretations of their meaning,
but the US Model BIT of 2012 provides a mechanism similar to the one in the NAFTA:

Article 30(3)

A joint decision of the Parties, each acting through its representative designated for purposes of
p. 33 this Article, declaring their interpretation of a provision of this Treaty shall be binding on a
tribunal, and any decision or award issued by a tribunal must be consistent with that joint decision.

This method may be e cient, but has a serious drawback. States may strive to issue o cial interpretations
to in uence proceedings to which they are parties. However, a mechanism whereby a party to a dispute is
able to in uence the outcome of judicial proceedings—by issuing an o cial interpretation to the detriment
of the other party—is incompatible with principles of fair procedure and is hence undesirable.

(d) The authority of ʻprecedentsʼ

Reliance on past decisions is a typical feature of any orderly decision process. Drawing on the experience of
past decision-makers plays an important role in securing the necessary uniformity and stability of the law.
A coherent case law strengthens the predictability of decisions and enhances their authority.

In investment arbitration, each tribunal is constituted ad hoc for the particular case; therefore, it is more
di cult to develop a consistent case law than in an international court such as the International Court of
 Justice or European Court of Human Rights. Yet, tribunals do rely on previous decisions by other tribunals
whenever they are able. Discussion of previous cases and of the interpretations adopted in them is a regular
32
feature in almost every decision. At the same time, it is also well established that tribunals in investment
arbitration are not bound by previous decisions of other tribunals.

Despite their reliance on case law, tribunals have repeatedly pointed out that they are not bound by previous
33 34
cases. In AES v Argentina the Tribunal entered into an extensive discussion of the value of previous
decisions as ‘precedents’. It said:

Downloaded from [Link] by Bibliotheek van het Vredespaleis user on 14 August 2024
p. 34 each decision or award delivered by an ICSID Tribunal is only binding on the parties to the dispute
settled by this decision or award. There is so far no rule of precedent in general international law;
35
nor is there any within the speci c ICSID system …

35 At para 23. Footnote omitted.

But the Tribunal also pointed to the value of previous decisions:

Each tribunal remains sovereign and may retain, as it is con rmed by ICSID practice, a di erent
solution for resolving the same problem; but decisions on jurisdiction dealing with the same or
very similar issues may at least indicate some lines of reasoning of real interest; this Tribunal may
consider them in order to compare its own position with those already adopted by its predecessors
and, if it shares the views already expressed by one or more of these tribunals on a speci c point of
36
law, it is free to adopt the same solution.

36 At para 30.

Having made these general points, the Tribunal proceeded to examine and rely on previous decisions by
37
other tribunals.

38
The Tribunal in Saipem v Bangladesh saw it as its duty to contribute to a harmonious development of the
law. It stated:

The Tribunal considers that it is not bound by previous decisions. At the same time, it is of the
opinion that it must pay due consideration to earlier decisions of international tribunals. It
believes that, subject to compelling contrary grounds, it has a duty to adopt solutions established
in a series of consistent cases. It also believes that, subject to the speci cs of a given treaty and of
the circumstances of the actual case, it has a duty to seek to contribute to the harmonious
development of investment law and thereby to meet the legitimate expectations of the community
39
of States and investors towards certainty of the rule of law.

39 At para 67. Footnotes omitted. Other tribunals have adopted the same or a similar formula: Noble Energy v
Ecuador, Decision on Jurisdiction, 5 March 2008, para 50; Duke Energy v Ecuador, Award, 18 August 2008, paras
116–17; Austrian Airlines v Slovakia, Final Award, 9 October 2009, paras 83–4; Burlington v Ecuador, Decision on
Jurisdiction, 2 June 2010, paras 99–100; Fakes v Turkey, Award, 14 July 2010, para 96; Suez v Argentina, Decision
on Liability, 30 July 2010, para 182; Chemtura v Canada, Award, 2 August 2010, paras 108–9.

In some cases tribunals have not followed earlier decisions. At times they have simply adopted a di erent
solution without distancing themselves from the earlier decision. At other times, they have referred to an
earlier decision and pointed out that they were unconvinced by the reasoning of the previous tribunal and
40
that, therefore, their decision has departed from the one previously adopted.
p. 35 (e) Towards a greater uniformity of interpretation
The divergence of interpretations on certain issues has caused some concern and led to suggestions for
improving the consistency of decisions. One perceived solution is the creation of an appeals mechanism that
41
would open the possibility for reviewing decisions thereby increasing the chances of a consistent case law.
42
A number of US treaties foresee this possibility in the form of an appellate body or similar mechanism. The
US Model BIT of 2012 contains the following provision in Article 28(10):

In the event that an appellate mechanism for reviewing awards rendered by investor-State dispute

Downloaded from [Link] by Bibliotheek van het Vredespaleis user on 14 August 2024
settlement tribunals is developed in the future under other institutional arrangements, the Parties
shall consider whether awards rendered under Article 34 should be subject to that appellate
mechanism.

It is doubtful whether separate appellate bodies established under di erent treaties would contribute to a
coherent case law. A harmonizing e ect will be achieved only if the institutional mechanism applies to all,
or at least many, treaties. The idea of a multilateral appeals mechanism is re ected in the Dominican
43 44
Republic–CAFTA–United States Free Trade Agreement (FTA) as well as in US FTAs with Singapore and
45
Chile.

46
ICSID at one point oated a draft that foresaw the creation of an appeals facility at ICSID but the idea was
dropped as premature.

An appeals facility is not necessarily the best mechanism for achieving coherence and consistency in the
interpretation of investment treaties. Appeal presupposes a decision being attacked for an alleged aw in
order for it to be repaired. Rather than try to x the damage after the fact through an appeal, it is more
economical and e ective to address it preventively before it occurs.

A method for securing coherence and consistency that has been remarkably successful is to allow
47
preliminary rulings while the original proceedings are still pending. Under such a system, a tribunal would
suspend proceedings and request a ruling on a question of law from a body established for that purpose.
p. 36 This procedure has been very successful in the framework of the European Union to secure the uniform
48
application of EU law by domestic courts.

2. Application of investment treaties in time

(a) Inter-temporal application of treaties in general

In principle, treaties apply only in relation to acts or events that occurred after their entry into force. This
rule is expressed in Article 28 of the VCLT:

Article 28
Non-Retroactivity of Treaties

Unless a di erent intention appears from the treaty or is otherwise established, its provisions do
not bind a party in relation to any act or fact which took place or any situation which ceased to exist
49
before the date of the entry into force of the treaty with respect to that party.

49 Article 2(3) of the United States Model BIT of 2012 echoes this provision.

This means that the substantive law in force at the time an act was performed is to be applied as the
standard for the act’s legality. This principle is also re ected in the International Law Commission’s Articles
 on State Responsibility:

Article 13
International Obligation in Force for a State

An act of a State does not constitute a breach of an international obligation unless the State is
50
bound by the obligation in question at the time the act occurs.

50 International Law Commission (ILC), Articles on State Responsibility, 2001. See J Crawford, The International
Law Commissionʼs Articles on State Responsibility (2002) 131.

Downloaded from [Link] by Bibliotheek van het Vredespaleis user on 14 August 2024
51 52
International practice has also adhered to this principle. The Tribunal in Impregilo v Pakistan said:

Impregilo complains of a number of acts for which Pakistan is said to be responsible. The legality
of such acts must be determined, in each case, according to the law applicable at the time of their
53
performance.

53 At para 311.

(b) Di erent inter-temporal rules for jurisdiction and substance

Issues of jurisdiction and of substantive law are often subject to di erent inter-temporal rules. A provision
on dispute settlement in a treaty that refers to any dispute arising from an investment extends to disputes
p. 37 relating to events that took place prior to the treaty’s entry into force. This does not mean that the treaty’s
substantive rules are applicable to these events. Tribunals have applied di erent inter-temporal rules to
54 55
jurisdictional clauses and to substantive provisions in treaties. In SGS v Philippines the Tribunal
distinguished the application ratione temporis of the BIT’s jurisdictional provisions from the application of
the BIT’s substantive standards. It said:

According to Article II of the BIT, it applies to investments ‘made whether prior to or after the
entry into force of the Agreement’. Article II does not, however, give the substantive provisions of
the BIT any retrospective e ect. The normal principle stated in Article 28 of the Vienna Convention
on the Law of Treaties applies … It may be noted that in international practice a rather di erent
approach is taken to the application of treaties to procedural or jurisdictional clauses than to
56
substantive obligations.

56 At paras 166, 167.

This means that a tribunal may have to apply di erent legal rules applicable at di erent times depending on
57
when the acts in question occurred. These rules may be contained in customary international law or in a
58
treaty that has since been terminated.

But the applicability of substantive law may have jurisdictional implications. If, under the terms of a treaty,
consent to arbitration is limited to claims alleging a violation of that treaty, the date of the treaty’s entry
59
into force is also the date from which acts and events are covered by the consent. Put di erently, under
such a consent clause the entry into force of the substantive law also determines the tribunal’s jurisdiction
ratione temporis since the tribunal may only hear claims for violation of that law. A tribunal that is
competent only for alleged violations of the treaty itself will not have jurisdiction over acts that occurred
60
before the treaty’s entry into force even if those acts were illegal under customary international law. For
instance, under the NAFTA, the scope of consent to arbitration is limited to claims arising from alleged
61
breaches of the NAFTA.
 In some cases tribunals have found that the acts in question were of a continuing character, that is, that
62
they may have started before the treaty’s entry into force but persisted thereafter. The failure to pay sums
63 64
p. 38 due under a contract is an example of a continuing breach. In Mondev v United States the dispute had
already arisen before the entry into force of the NAFTA. It was beyond doubt that the NAFTA is not
retrospective in e ect. The Tribunal found that acts committed prior to the Treaty’s entry into force might
continue in e ect after that date. It stated:

an act, initially committed before NAFTA entered into force, might in certain circumstances
continue to be of relevance after NAFTA’s entry into force, thereby becoming subject to NAFTA

Downloaded from [Link] by Bibliotheek van het Vredespaleis user on 14 August 2024
obligations. … Thus events or conduct prior to the entry into force of an obligation for the
respondent State may be relevant in determining whether the State has subsequently committed a
breach of the obligation. But it must still be possible to point to conduct of the State after that date
65
which is itself a breach … .

65 At paras 58, 70. See further Chevron v Ecuador, Interim Award, 1 December 2008, paras 271–84.

Inter-temporal issues also arise when the alleged breach occurs not through one but through a series of acts
66
or omissions that may be spread over time. Such a composite act will be deemed to have taken place at the
67
point of completion, that is, when the last action or omission occurred. A possible example would be a
68
continuing denial of justice.

(c) The date relevant to determine jurisdiction

It is an accepted principle of international adjudication that, in the absence of treaty provisions to the
69
contrary, the relevant date for purposes of jurisdiction is the date of the institution of proceedings. The
70
Tribunal in Vivendi II said:

it is generally recognized that the determination of whether a party has standing in an

international judicial forum, for purposes of jurisdiction to institute proceedings, is made by
reference to the date on which such proceedings are deemed to have been instituted. ICSID
71
Tribunals have consistently applied this Rule.

71 At para 60.

Tribunals have applied this principle in a number of contexts. For instance, they have determined that for
purposes of jurisdiction the decisive date for participation in the ICSID Convention, of the host state and of
72
p. 39 the investor’s state of nationality, is the date of the institution of arbitration proceedings. The same
73 74
principle applies to the entry into force of BITs and of other treaties relevant to jurisdiction. Similarly,
the sale of the investment or the assignment of the claim after the institution of proceedings did not a ect
75
the claimant’s standing.

This principle has been mitigated by the practice of accepting jurisdiction in situations in which the
requirements had not been fully satis ed at the time of instituting proceedings but had been met
76
subsequently. Where these requirements concerned speci ed consultation periods to reach an amicable
settlement or an attempt to seek redress before the domestic courts, tribunals have found that it makes no
sense to decline jurisdiction in instances where the procedural requirements have been met in the meantime
77
and the claimant would have been able to resubmit the claim immediately.
 (d) Relevant dates under the ICSID Convention
The ICSID Convention entered into force on 14 October 1966, 30 days after the deposit of the twentieth
rati cation. It enters into force for individual states 30 days after the respective instrument of rati cation
78
has been deposited. In cases where a state denounces the Convention, the denunciation takes e ect six
79
months after the receipt of a notice to that e ect by the World Bank.

Article 25 of the ICSID Convention relates to several dates that are critical to jurisdiction. The host state
must be a party to the Convention on the date the proceedings are instituted. The same applies to the state

Downloaded from [Link] by Bibliotheek van het Vredespaleis user on 14 August 2024
of the investor’s nationality: it must also be a party to the Convention at the time proceedings are instituted.

p. 40 The temporal requirements for the investor’s nationality are somewhat complex. For natural persons, under
Article 25(2)(a), there are two requirements relating to two di erent dates: the investor must have the
nationality of a state party to the Convention both on the date of consent and on the date the request for
arbitration is registered. In addition, the investor must not have the host state’s nationality on either date.
The latter provision refers, in particular, to dual or multiple nationals. As a practical matter, the date of
consent and the date of the institution of proceedings will often coincide or, at least, be very close. This is so
whenever consent is based on a general o er in a treaty or in the host state’s domestic legislation, which the
investor simply accepts through the institution of proceedings.

For juridical persons, under Article 25(2)(b) the nationality requirement relates to only one date, the date of
consent. On that date the juridical person must have the nationality of a party to the Convention other than
the host state. In practical terms, the date of consent will also usually be that of the date of institution of
proceedings.

80
As explained below in more detail, under Article 25(2)(b) of the Convention, the host state and the investor
may agree to treat a locally incorporated company as a foreign investor because of its foreign control. That
provision refers to the date of consent as the relevant date for the nationality of the host state but is silent
on the date of foreign control. Tribunals have generally also favoured the date of consent for purposes of
control but have, at the same time, looked at subsequent changes up to the time of the institution of
81
proceedings. Some BITs and the ECT sensibly provide that the foreign control must exist before the
82
dispute arises.

The date of the consent to ICSID’s jurisdiction is important for several reasons. Consent must exist at the
83
time the proceedings are instituted and, as explained above, the investor’s nationality requirements must
be met on the date of consent.

84
Once consent is given it becomes irrevocable, that is, it can no longer be withdrawn unilaterally. Other
remedies become unavailable, in principle, from the date of consent and diplomatic protection is no longer
85
permitted. In addition, the Arbitration Rules in force at the time of consent will apply unless the parties
86
agree otherwise.

The time of consent is the date by which both parties have agreed to arbitration. If the consent clause is
contained in an o er by one party, its acceptance by the other party will determine the time of consent. If
the host state makes a general o er to consent to arbitration in its legislation or in a treaty, the time of
p. 41 consent is determined by the investor’s acceptance of the o er. This o er may be accepted simply by
initiating the arbitration.

It is possible that consent to arbitration is expressed before other conditions for the jurisdiction of a tribunal
are met. For instance, the parties may give their consent to ICSID arbitration before the Convention’s
rati cation by the host state or by the investor’s home state. In that case, the date of consent will be the date
on which all the conditions have been met. If the host state or the investor’s home state rati es the
 Convention after the signature of a consent agreement, the time of consent will be the entry into force of the
87
Convention for the respective state.

The ICSID Convention provides for the withdrawal of states parties subject to a time limit. Under Article 71
of the ICSID Convention, a contracting state may denounce the Convention by written notice. Such
denunciation takes e ect six months after receipt of the notice. Under Article 72 of the Convention, the
denunciation does not a ect rights or obligations arising out of consent to ICSID’s jurisdiction given before
the notice of denunciation. This provision has led to a lively debate as to whether the reference to consent in
88
Article 72 means a perfected consent agreement or a mere o er of consent. So far, three states—Bolivia,

Downloaded from [Link] by Bibliotheek van het Vredespaleis user on 14 August 2024
89
Ecuador, and Venezuela—have withdrawn from the Convention.

(e) Inter-temporal rules in other treaties

Treaties containing consent to arbitration often contain speci c provisions determining their temporal
application. Many BITs provide that they shall be applicable to all investments whether made before or after
90 91
their entry into force. In other words, they also protect existing investments. This should not lead to the
92
conclusion that treaties not containing a clause of this type will only apply to ‘new’ investments. But a
p. 42 provision that extends the treaty’s protection to existing investments does not mean that acts committed
93
before the treaty’s entry into force are covered by its substantive provisions.

94
Many BITs limit consent to arbitration to disputes arising after their entry into force. For instance, the
Argentina-Spain BIT, after stating that it shall also apply to investments made before its entry into force,
provides:

However, this agreement shall not apply to disputes or claims originating before its entry into
force.

95
In a number of cases tribunals have grappled with the question of the time at which the dispute had arisen.
96
In Ma ezini v Spain the respondent challenged the Tribunal’s jurisdiction alleging that the dispute
originated before the entry into force of the Argentina-Spain BIT. The Tribunal found that the events on
which the parties disagreed began years before the BIT’s entry into force; but this did not mean that a legal
97
dispute existed at the time. The Tribunal said:

there tends to be a natural sequence of events that leads to a dispute. It begins with the expression
of a disagreement and the statement of a di erence of views. In time these events acquire a precise
legal meaning through the formulation of legal claims, their discussion and eventual rejection or
lack of response by the other party. The con ict of legal views and interests will only be present in
98
the latter stage, even though the underlying facts predate them.

98 At para 96.

On that basis, the Tribunal reached the conclusion that the dispute in its technical and legal sense had begun
to take shape after the BIT’s entry into force. It followed that the Tribunal was competent to consider the
dispute.

99
The time of the dispute is not identical to the time of the events leading to the dispute. Normally, the
allegedly illegal acts will occur some time before the dispute. Therefore, the exclusion of disputes occurring
before the treaty’s entry into force should not be read as excluding jurisdiction over events occurring before
that date.

100
In Lucchetti v Peru the BIT between Chile and Peru provided that it would not apply to disputes that arose
prior to its entry into force. A series of administrative measures by local authorities had denied or
p. 43 withdrawn construction and operating licences from the investors. The investors had successfully
challenged the earlier administrative acts through court proceedings that took place entirely before the
BIT’s entry into force. A few days after the BIT’s entry into force, the municipality issued further adverse
decrees. The Tribunal found that the dispute had already arisen before the BIT’s entry into force and
101
declined jurisdiction.

102 103
In Jan de Nul v Egypt the BIT between BLEU and Egypt also provided that it would not apply to disputes
that had arisen prior to its entry into force. A dispute already existed when, in 2002, the BIT replaced an
earlier BIT of 1977. At that time the dispute was pending before the Administrative Court of Ismaïlia which

Downloaded from [Link] by Bibliotheek van het Vredespaleis user on 14 August 2024
eventually rendered an adverse decision in 2003, approximately one year after the new BIT’s entry into
force. The Tribunal accepted the claimants’ contention that the dispute before it was di erent from the one
that had been brought before the Egyptian court:

while the dispute which gave rise to the proceedings before the Egyptian courts and authorities
related to questions of contract interpretation and of Egyptian law, the dispute before this ICSID
104
Tribunal deals with alleged violations of the two BITs …

104 At para 117.

This conclusion was con rmed by the fact that the court decision was a major element of the complaint.
According to the Tribunal:

The intervention of a new actor, the Ismaïlia Court, appears here as a decisive factor to determine
whether the dispute is a new dispute. As the Claimants’ case is directly based on the alleged
wrongdoing of the Ismaïlia Court, the Tribunal considers that the original dispute has
105
(re)crystallized into a new dispute when the Ismaïlia Court rendered its decision.

105 At para 128.

It followed that the Tribunal had jurisdiction over the claim.

Notes
1 VCLT, Art 31(1) provides: ʻA treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its object and purpose.ʼ
2 See AAPL v Sri Lanka, Award, 27 June 1990, paras 38–42; Tokios Tokelės v Ukraine, Decision on Jurisdiction, 29 April 2004,
para 27; MTD v Chile, Award, 25 May 2004, para 112; Enron v Argentina, Decision on Jurisdiction (Ancillary Claim), 2 August
2004, para 32; Salini v Jordan, Decision on Jurisdiction, 29 November 2004, para 75; Plama v Bulgaria, Decision on
Jurisdiction, 8 February 2005, paras 117, 147–65; Sempra Energy Intl v Argentina, Decision on Jurisdiction, 11 May 2005,
para 141; Camuzzi v Argentina, Decision on Jurisdiction, 11 May 2005, para 133; Methanex v United States, Award, 3 August
2005, Part II, Ch B, paras 15–23, Part IV, Ch B, para 29; Eureko v Poland, Partial Award, 19 August 2005, para 247; Aguas del
Tunari, SA v Bolivia, Decision on Jurisdiction, 21 October 2005, paras 88–93, 226, 230, 239; Saluka v Czech Republic, Partial
Award, 17 March 2006, paras 296–9; Malaysian Historical Salvors v Malaysia, Award, 17 May 2007, paras 65–8;
Kardassopoulos v Georgia, Decision on Jurisdiction, 6 July 2007, paras 176–88, 206–8; Vivendi v Argentina, Resubmitted
Case: Award, 20 August 2007, paras 7.4.2–7.4.4; Fraport v Philippines, Award, 16 August 2007, paras 339–42; RSM Production
v Grenada, Award, 13 March 2009, paras 380–90; Hrvatska Elektroprivreda v Slovenia, Decision on Treaty Interpretation
Issue, 12 June 2009, paras 151–2, 157–65, 171–94; Romak v Uzbekistan, Award, 26 November 2009, paras 173–97; Millicom
v Senegal, Decision on Jurisdiction, 16 July 2010, paras 58, 70–4; Fraport v Philippines, Decision on Annulment, 23
December 2010, paras 73–5, 93–113; HICEE v Slovakia, Partial Award, 23 May 2011, paras 47–93, 110–47 (see also the
Dissenting Opinion of Judge Brower).
4 VCLT, Art 32 dealing with supplementary means of interpretation provides:
 Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty
and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of
article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

5 Noble Ventures v Romania, Award, 12 October 2005.

7 R Dolzer and M Stevens, Bilateral Investment Treaties (1995) 20–5.

Downloaded from [Link] by Bibliotheek van het Vredespaleis user on 14 August 2024
9 Lauder v Czech Republic, Award, 3 September 2001, para 292; MTD v Chile, Award, 25 May 2004, paras 104, 105; Siemens v
Argentina, Decision on Jurisdiction, 3 August 2004, para 81; CMS v Argentina, Award, 12 May 2005, para 274; Noble Ventures
v Romania, Award, 12 October 2005, para 52; Aguas del Tunari, SA v Bolivia, Decision on Jurisdiction, 21 October 2005,
paras 153, 240–1, 247; Continental Casualty Company v Argentina, Decision on Jurisdiction, 22 February 2006, para 80;
Saluka v Czech Republic, Partial Award, 17 March 2006, para 299; Kardassopoulos v Georgia, Decision on Jurisdiction, 6 July
2007, paras 178–81; BG Group v Argentina, Final Award, 24 December 2007, paras 132–4; Société Générale v Dominican
Republic, Decision on Jurisdiction, 19 September 2008, paras 21 29, 31–3, 103; Hrvatska Elektroprivreda v Slovenia,
Decision on Treaty Interpretation Issue, 12 June 2009, paras 177–9; Austrian Airlines v Slovakia, Final Award, 9 October
2009, paras 101–4; AFT v Slovakia, Award, 5 March 2011, paras 236–7.
10 Note that the Tribunal in Amco v Indonesia, in interpreting the ICSID Convention, pointed out that investment protection
was also in the longer-term interest of host states: ʻto protect investments is to protect the general interest of
development and of developing countriesʼ (Decision on Jurisdiction, 25 September 1983, para 23). See also Award, 20
November 1984, para 249.
11 Plama v Bulgaria, Decision on Jurisdiction, 8 February 2005, para 193.
12 SGS v Pakistan, Decision on Jurisdiction, 6 August 2003, para 171; Noble Ventures v Romania, Award, 12 October 2005, para
55.
13 Methanex v United States, Preliminary Award on Jurisdiction, 7 August 2002, paras 103–5; Aguas del Tunari, SA v Bolivia,
Decision on Jurisdiction, 21 October 2005, para 91; SGS v Philippines, Decision on Jurisdiction, 29 January 2004, para 116;
Eureko v Poland, Partial Award, 19 August 2005, para 248; Suez, Sociedad General de Aguas de Barcelona SA, and InterAguas
Servicios Integrales del Agua SA v Argentina, Decision on Jurisdiction, 16 May 2006, paras 59, 64.
14 See pp 263–4.
15 See eg Noble Ventures v Romania, Award, 12 October 2005, where the Tribunal, a er subscribing to a ʻrestrictive
interpretationʼ (at para 55), gives full e ect to an umbrella clause (at paras 56–62). By contrast, in El Paso Energy v
Argentina, Decision on Jurisdiction, 27 April 2006, the Tribunal expresses a preference for a ʻbalanced interpretationʼ (at
para 70) but then proceeds to interpret an umbrella clause very restrictively (at paras 70–86).
16 Fraport v Philippines, Award, 16 August 2007.
17 At paras 337–43. Inexplicably, the Decision on Annulment in this case criticizes the Tribunalʼs use of the Instrument of
Ratification. See Fraport v Philippines, Decision on Annulment, 23 December 2010, paras 98, 99, 107.
19 History of the ICSID Convention: Documents Concerning the Origin and the Formulation of the Convention on the
Settlement of Investment Disputes between States and Nationals of Other States, Washington, DC 1968, reprinted 2001.
20 See Aguas del Tunari, SA v Bolivia, Decision on Jurisdiction, 21 October 2005, para 274, where the Tribunal deplored the
lack of insight to be gained from the sparse material provided by the parties. In Perenco v Ecuador, Decision on
Jurisdiction, 30 June 2011, paras 92–5 the Tribunal asked the parties to try to obtain the travaux préparatoires to the
France-Ecuador BIT on a particular point.
21 The documents are published at <[Link] [Link]/[Link]>.
It is unclear whether the available documentation covers all existing documents.
22 Methanex Corp v United States, Award, 3 August 2005.
24 Aguas del Tunari v Bolivia, Decision on Jurisdiction, 21 October 2005.
25 At paras 47, 249–63.
26 SGS v Pakistan, Decision on Jurisdiction, 6 August 2003, 8 ICSID Reports 406.
27 See S A Alexandrov, ʻBreaches of Contract and Breaches of Treatyʼ (2004) 5 J World Investment & Trade 555, 570–1; E
Gaillard, ʻInvestment Treaty Arbitration and Jurisdiction Over Contract Claims—The SGS Cases Consideredʼ in T Weiler
(ed), International Investment Law and Arbitration (2005) 325, 341–2.
28 CME v Czech Republic, Final Award, 14 March 2003, paras 87–93, 437, 504; Eastern Sugar v Czech Republic, Partial Award, 27
March 2007, paras 193–7.
29 NAFTA, Art 2001(1): ʻThe Parties hereby establish the Free Trade Commission, comprising cabinet-level representatives of
the Parties or their designees.ʼ NAFTA, Art 1131(2): ʻAn interpretation by the Commission of a provision of this Agreement
 shall be binding on a Tribunal established under this Section.ʼ
30 FTC Note of Interpretation of 31 July 2001.
31 See Mondev v United States, Award, 11 October 2002, paras 100 et seq; United Parcel Service v Canada, Award, 22
November 2002, para 97; ADF v United States, Award, 9 January 2003, paras 175–8; Loewen v United States, Award, 26 June
2003, paras 124–8; Waste Management v Mexico, Award, 30 April 2004, paras 90–1; Methanex v United States, Award, 3
August 2005, Part II, Ch H, para 23; Grand River Enterprises v United States, Award, 12 January 2011, paras 175–6. See also
Mexico v Metalclad, Judgment, Supreme Court of British Columbia, 2 May 2001, 5 ICSID Reports 236, paras 61–5.
32 See eg Amco v Indonesia, Decision on Annulment, 16 May 1986, para 44; LETCO v Liberia, Award, 31 March 1986, 2 ICSID
Reports 346, 352; Feldman v Mexico, Award, 16 December 2002, para 107; Enron v Argentina, Decision on Jurisdiction, 14
January 2004, para 40; Enron v Argentina, Decision on Jurisdiction (Ancillary Claim), 2 August 2004, para 25; AES v

Downloaded from [Link] by Bibliotheek van het Vredespaleis user on 14 August 2024
Argentina, Decision on Jurisdiction, 26 April 2005, paras 17–33; Gas Natural v Argentina, Decision on Jurisdiction, 17 June
2005, paras 36–51; Bayindir v Pakistan, Decision on Jurisdiction, 14 November 2005, para 76; Vivendi v Argentina, Decision
on Jurisdiction, 14 November 2005, para 94; EnCana v Ecuador, Award, 3 February 2006, para 189; El Paso v Argentina,
Decision on Jurisdiction, 27 April 2006, para 39; Suez v Argentina, Decision on Jurisdiction, 16 May 2006, paras 26, 31, 60–5;
Jan de Nul v Egypt, Decision on Jurisdiction, 16 June 2006, paras 63, 64; Azurix v Argentina, Award, 14 July 2006, para 391;
Pan American v Argentina, Decision on Preliminary Objections, 27 July 2006, para 42; ADC v Hungary, Award, 2 October
2006, para 293; World Duty Free v Kenya, Award, 4 October 2006, para 16; Saipem v Bangladesh, Decision on Jurisdiction,
21 March 2007, para 67; Chevron & Texaco v Ecuador, Interim Award, 1 December 2008, paras 119–24; Azurix v Argentina,
Decision on Annulment, 1 September 2009, paras 375–7; Chemtura v Canada, Award, 2 August 2010, paras 108, 109;
RosInvest v Russia, Final Award, 12 September 2010, paras 281–6; Grand River Enterprises v United States, Award, 12
January 2011, paras 61, 70; Brandes v Venezuela, Award, 2 August 2011, para 31.
33 Amco v Indonesia, Decision on Jurisdiction, 25 September 1983, 1 ICSID Reports 395; Amco v Indonesia, Decision on
Annulment, 16 May 1986, para 44; LETCO v Liberia, Award, 31 March 1986, para 352; Feldman v Mexico, Award, 16 December
2002, para 107; Enron v Argentina, Decision on Jurisdiction (Ancillary Claim), 2 August 2004, para 25; Gas Natural v
Argentina, Decision on Jurisdiction, 17 June 2005, paras 36–52; Romak v Uzbekistan, Award, 26 November 2009, paras
170–1.
34 AES Corp v Argentina, Decision on Jurisdiction, 26 April 2005, paras 17–33.
37 At paras 51–9, 70, 73, 86, 89, 95–7. See also Bayindir v Pakistan, Decision on Jurisdiction, 14 November 2005, para 76: ʻThe
Tribunal agrees that it is not bound by earlier decisions, but will certainly carefully consider such decisions whenever
appropriateʼ (referring to AES Corp v Argentina); Abaclat v Argentina, Decision on Jurisdiction, 4 August 2011, paras 292–3.
38 Saipem v Bangladesh, Decision on Jurisdiction, 21 March 2007.
40 See eg SGS v Philippines, Decision on Jurisdiction, 29 January 2004, para 97; Eureko v Poland, Partial Award, 19 August
2005, paras 256–8; El Paso Energy v Argentina, Decision on Jurisdiction, 27 April 2006, paras 76–7; Suez, Sociedad General
de Aguas de Barcelona SA, and InterAguas Servicios Integrales del Agua SA v Argentina, Decision on Jurisdiction, 16 May
2006, para 64; Plama v Bulgaria, Decision on Jurisdiction, 8 February 2005, paras 216–21; Wintershall v Argentina, Award, 8
December 2008, paras 178, 194; Tza Yap Shum v Peru, Decision on Jurisdiction, 19 June 2009, para 173; SGS v Paraguay,
Decision on Jurisdiction, 12 February 2010, paras 41–2.
41 See K P Sauvant and M Chiswick-Patterson (eds), Appeals Mechanism in International Investment Disputes (2008).
42 Uruguay-US BIT, 25 October 2004, Annex E, 44 ILM 268, 296 (2005). Generally see B Legum, ʻThe Introduction of an
Appellate Mechanism: The US Trade Act of 2002ʼ in E Gaillard and Y Banifatemi (eds), Annulment of ICSID Awards (2004)
289.
43 Dominican Republic–Central America–United States Free Trade Agreement, 5 August 2004, Art 10.20(10).
44 Singapore-US FTA, 1 January 2004, Art 15.19(10).
45 Chile-US FTA, 1 January 2004, Art 10.19(10).
46 ICSID Discussion Paper, ʻPossible Improvements of the Framework for ICSID Arbitrationʼ, 22 October 2004.
47 G Kaufmann-Kohler, ʻAnnulment of ICSID Awards in Contract and Treaty Arbitrations: Are there Di erences?ʼ in E Gaillard
and Y Banifatemi (eds), Annulment of ICSID Awards (2004) 289. See also G Kaufmann-Kohler, ʻIn Search of Transparency
and Consistency: ICSID Reform Proposalʼ (2005) 2(5) TDM 8; C Schreuer, ʻPreliminary Rulings in Investment Arbitrationʼ in K
P Sauvant and M Chiswick-Patterson (eds), Appeals Mechanism in International Investment Disputes (2008) 207.
48 It is contained in Art 267 (ex Art 234 TEC) of the Treaty on the Functioning of the European Union.
51 Island of Palmas case, II RIAA 829 at 845 (1949); Tradex v Albania, Decision on Jurisdiction, 24 December 1996, 5 ICSID
Reports 47, 66.
52 Impregilo v Pakistan, Decision on Jurisdiction, 22 April 2005.
54 Salini v Jordan, Decision on Jurisdiction, 29 November 2004, paras 176, 177; Impregilo v Pakistan, Decision on Jurisdiction,
22 April 2005, para 309; Micula v Romania, Decision on Jurisdiction and Admissibility, 24 September 2008, paras 150–7.
55 SGS v Philippines, Decision on Jurisdiction, 29 January 2004.
57 Chevron v Ecuador, Interim Award, 1 December 2008, paras 199, 201, 208–9.
58 Jan de Nul v Egypt, Award, 6 November 2008, paras 132–41.
59 TECMED v Mexico, Award, 29 May 2003, paras 63–8; SGS v Philippines, Decision on Jurisdiction, 29 January 2004, paras 166–
8.
60 In Generation Ukraine v Ukraine, Award, 16 September 2003, paras 11.2, 11.3, 17.1 the Tribunal found that under the terms
of the applicable BIT it was competent only for disputes arising from alleged breaches of the BIT itself. Therefore, there
was no jurisdiction with regard to an expropriation that had occurred before the BITʼs entry into force.
61 NAFTA, Art 1116.
62 Mondev v United States, Award, 11 October 2002, paras 58, 69, 70, 73; TECMED v Mexico, Award, 29 May 2003, paras 63–8;
SGS v Philippines, Decision on Jurisdiction, 29 January 2004, para 167; Impregilo v Pakistan, Decision on Jurisdiction, 22

Downloaded from [Link] by Bibliotheek van het Vredespaleis user on 14 August 2024
April 2005, paras 312–13; Railroad Development Corp v Guatemala, Second Decision on Jurisdiction, 18 May 2010, paras
114–38.
63 SGS v Philippines, Decision on Jurisdiction, 29 January 2004, para 167.
64 Mondev v United States, Award, 11 October 2002.
66 For detailed discussion see S A Alexandrov, ʻThe “Baby Boom” of Treaty-Based Arbitrations and the Jurisdiction of ICSID
Tribunals: Shareholders as “Investors” and Jurisdiction Ratione Temporisʼ (2005) 4 Law and Practice of Intʼl Courts and
Tribunals 19, 52–6.
67 See ILC, Articles on State Responsibility, 2001, Art 15. See J Crawford, The International Law Commissionʼs Articles on State
Responsibility (2002) 141. See also Commentaries (7) and (8) at p 143.
68 OKO Pankki v Estonia, Award, 19 November 2007, paras 194–6, 284; Chevron v Ecuador, Interim Award, 1 December 2008,
paras 285–301.
69 ICJ, Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahmiriya v United States of America), Preliminary Objections, Judgment, 27
February 1998 ICJ Reports (1998) 115, para 37; Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of
the Congo v Belgium), Judgment, 14 February 2002 ICJ Reports (2002) 1, paras 26 et seq.
70 Vivendi v Argentina (Vivendi II), Decision on Jurisdiction, 14 November 2005.
72 See Holiday Inns v Morocco, P Lalive, ʻThe First “World Bank” Arbitration (Holiday Inns v Morocco)—Some Legal Problemsʼ
(1980) 51 BYBIL 123, 142–6; Amco v Indonesia, Decision on Jurisdiction, 25 September 1983, 1 ICSID Reports 403; LETCO v
Liberia, Decision on Jurisdiction, 24 October 1984, 2 ICSID Reports 351; Rompetrol v Romania, Decision on Jurisdiction, 18
April 2008, para 79.
73 Tradex v Albania, Decision on Jurisdiction, 24 December 1996, 5 ICSID Reports 58; Goetz v Burundi, Award, 10 February
1999, para 72.
74 Bayindir v Pakistan, Decision on Jurisdiction, 14 November 2005, para 178.
75 CSOB v Slovakia, Decision on Jurisdiction, 24 May 1999, para 31; El Paso Energy v Argentina, Decision on Jurisdiction, 27
April 2006, paras 117–36; National Grid v Argentina, Decision on Jurisdiction, 20 June 2006, paras 117–19; Enron v
Argentina, Award, 22 May 2007, paras 196–8, 396. See also EnCana v Ecuador, Award, 3 February 2006, paras 123–32.
76 For practice in the PCIJ and ICJ, see: Mavrommatis Palestine Concessions Case, Judgment No 2, 30 August 1924, PCIJ,
Series A, No 2, 34; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v Yugoslavia), Preliminary Objections, Judgment, 11 July 1996, ICJ Reports (1996-II) 614, para 26; Application
of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Preliminary Objections,
Judgment, 18 November 2008, ICJ Reports (2008) 441–43, paras 85, 87, 89.
77 SGS v Pakistan, Decision on Jurisdiction, 6 August 2003, para 184; Bayindir v Pakistan, Decision on Jurisdiction, 14
November 2005, paras 88–103; Biwater Gau v Tanzania, Award, 24 July 2008, para 343; TSA Spectrum v Argentina, Award,
19 December 2008, para 112; AFT v Slovakia, Award, 5 March 2011, para 204.
78 ICSID Convention, Art 68.
79 ICSID Convention, Art 71. Under Art 72 the denunciation does not a ect the rights and obligations arising out of consent to
ICSIDʼs jurisdiction given before the notice of denunciation is received.
80 Chapter III.1(d).
81 Amco v Indonesia, Decision on Jurisdiction, 25 September 1983, 1 ICSID Reports 394; Klöckner v Cameroon, Award, 21
October 1983, 2 ICSID Reports 15; SOABI v Senegal, Decision on Jurisdiction, 1 August 1984, 2 ICSID Reports 183; LETCO v
Liberia, Decision on Jurisdiction, 24 October 1984, 2 ICSID Reports 349, 351; Vacuum Salt v Ghana, Award, 16 February
1994, paras 35–54; Vivendi v Argentina (Vivendi II), Decision on Jurisdiction, 14 November 2005, paras 21, 42–4, 65, 95–7.
82 See ECT, Art 26(7).
83 Tradex v Albania, Decision on Jurisdiction, 24 December 1996, 5 ICSID Reports 47, 57–8.
84 Article 25(1), last sentence.
85 Articles 26 and 27.
86 Article 44.
87 See Holiday Inns v Morocco, Decision on Jurisdiction, 12 May 1974; Lalive, P, ʻThe First “World Bank” Arbitration (Holiday
Inns v Morocco)—Some Legal Problemsʼ (1980) 51 BYBIL 123, 142, 143, 146; Cable TV v St Kitts and Nevis, Award, 13 January
1997, paras 2.18, 4.09, 5.24; Autopista v Venezuela, Decision on Jurisdiction, 27 September 2001, paras 90, 91; Generation
Ukraine v Ukraine, Award, 16 September 2003, paras 12.4–12.8.
88 See C Schreuer, ʻDenunciation of the ICSID Convention and Consent to Arbitrationʼ in M Waibel, A Kaushal, Kyo-Hwa Liz
Chung, and C Balchin (eds), The Backlash against Investment Arbitration: Perceptions and Reality (2010) 353 and the
authorities cited therein.
89 On 2 May 2007, the depositary received written notice of Boliviaʼs denunciation of the Convention which took e ect on 3
November 2007. On 6 July 2009, the depositary received written notice of Ecuadorʼs denunciation of the Convention

Downloaded from [Link] by Bibliotheek van het Vredespaleis user on 14 August 2024
which took e ect on 7 January 2010. On 24 January 2012, the depositary received written notice of Venezuelaʼs
denunciation of the Convention which took e ect on 25 July 2012.
90 Argentina-Spain BIT, Art II(2); Belgium and Luxemburg-Egypt BIT, Art 12; Ukraine-US BIT, Art XII(3). See also ECT, Art 1(6).
91 See Genin v Estonia, Award, 25 June 2001, para 326; SGS v Pakistan, Decision on Jurisdiction, 6 August 2003, para 153;
Generation Ukraine v Ukraine, Award, 16 September 2003, para 11.1; Pan American Energy v Argentina, Decision on
Preliminary Objections, 27 July 2006, para 211; OKO Pankki v Estonia, Award, 19 November 2007, paras 184–6; Chevron &
Texaco v Ecuador, Interim Award, 1 December 2008, paras 151–89.
92 See Yaung Chi Oo v Myanmar, Award, 31 March 2003, paras 69–75.
93 See TECMED v Mexico, Award, 29 May 2003, paras 53–68; SGS v Philippines, Decision on Jurisdiction, 29 January 2004, para
166; Kardassopoulos v Georgia, Decision on Jurisdiction, 6 July 2007, paras 253–5; Bayindir v Pakistan, Award, 27 August
2009, paras 131, 132.
94 The Tribunal in Salini v Jordan, Decision on Jurisdiction, 29 November 2004, para 170 found that the phrase ʻany dispute
which may ariseʼ only covered disputes that had arisen a er the BITʼs entry into force. See also Impregilo v Pakistan,
Decision on Jurisdiction, 22 April 2005, paras 297–304.
95 Helnan v Egypt, Decision on Jurisdiction, 17 October 2006, paras 33–57; Toto v Lebanon, Decision on Jurisdiction, 11
September 2009, paras 88–90; ATA v Jordan, Award, 18 May 2010, paras 98–109, 115–20.
96 Ma ezini v Spain, Decision on Jurisdiction, 25 January 2000, paras 90–8.
97 At paras 91–8.
99 Duke Energy v Peru, Decision on Jurisdiction, 1 February 2006, paras 146–50, Decision on Annulment, 1 March 2011, paras
111–13, 170–82; Railroad Development Corp. v Guatemala, Second Decision on Jurisdiction, 18 May 2010, paras 126–38.
100 Lucchetti v Peru, Award, 7 February 2005.
101 At paras 48–59. See also J Ga ney, ʻJurisdiction ratione temporis of ICSID Tribunals: Lucchetti and Jan De Nul Consideredʼ
(2006) 5 Transnational Dispute Management.
102 Jan de Nul v Egypt, Decision on Jurisdiction, 16 June 2006.
103 Belgo-Luxembourg Economic Union.