Time and Tide Wait for No One: The Curious Consideration of Time in International Investment Treaty Law

Abstract

The question of time in the operation of international law cannot always be resolved easily. In international investment treaty law, the resolution of temporal issues often requires an international tribunal to make detailed factual determinations, as well as to arrive at a correct understanding of both the primary treaty obligations at issue and matters of state responsibility. In particular, complex questions arise where determinations—such as whether a breach exists and when the breach occurred—involve judgments about conduct over time. These questions include the impact on a claim of the treaty’s date of entry into force or the date of its denunciation (or otherwise the demise of its validity), as well as the impact of time bars and notice periods as conditions of either jurisdiction of the tribunal or admissibility of the claim. In these instances, it is crucial that the tribunal bases its judgments about temporality and its legal effects on an appreciation of the treaty’s temporal requirements and an understanding of the nature of the primary obligation, which determines what will amount to a ‘breach’. The object and purpose of the temporal requirements and the primary obligations need to guide the arbitral assessment, along with relevant policy considerations, such as equity and good faith.