Research On The Jurisdiction Ratione Temporis In International Investment Arbitration

Jurisdiction ratione temporis in international investment arbitration means that an international investment tribunal has jurisdiction over investment disputes that arise within a specific period of time.At present,the basis of the temporal jurisdiction of an international investment tribunal is mainly derived from the temporal provisions in the IIAs.The temporal provisions are divided into two main aspects.The first aspect is the temporal scope of application of the IIAs itself,which has a significant impact on the existence of the temporal jurisdiction of the arbitral tribunal.The second aspect is the statute of limitations provided for in the IIAs.This statute of limitations affects the scope of the arbitral tribunal’s jurisdiction ratione temporis.If an investment dispute is time-barred,it is not within the temporal jurisdiction of the arbitral tribunal.Therefore,the acquisition of the temporal jurisdiction of the arbitral tribunal is subject to both the temporal scope of application of the IIAs itself and the statute of limitations of the IIAs.The issue of temporal jurisdiction is complicated by the inconsistent timing of IIAs in these two respects and the use of discretion by arbitral tribunals to interpret the provisions in an expansive manner.Disadvantageous for dispute resolution between investors and host states.In this context,the research of the temporal scope of application of IIAs and the issue of arbitration statute of limitations can clarify the temporal jurisdiction of arbitral tribunals.It will provide better ideas for the improvement of China when signing or revising investment agreements in the future,and promote China’s more active participation in international investment arbitration.International investment arbitration jurisdiction is divided into three main categories,namely jurisdiction ratione personae,ratione materiae and ratione temporis.Among them,jurisdiction ratione temporis refers to the jurisdiction of international investment tribunals over investment disputes that arise within a specific period of time.Ratione temporis is reflected in the principle of inter-temporal law as treaty non-retroactivity,which is also an important principle of international law that needs to be followed for jurisdiction ratione temporis.It is reflected in the international investment agreement as temporal scope of application and arbitration statute of limitations.The former is the fundamental basis of jurisdiction ratione temporis,the content of which is stipulated at the end of the agreement.The latter is one of the grounds for defending the investor’s jurisdiction ratione temporis in many arbitration practices and is set out in the "Investor-Contracting Party Dispute Resolution" clause.In arbitration practice,the existing problem of temporal jurisdiction is the lack of clarity in the temporal scope of the arbitration statute of limitations in the IIA,which leaves room for interpretation by the arbitral tribunal.Before examining the temporal scope of application provisions in IIAs,it is necessary to distinguish the temporal scope of application of the provisions in the substantive and procedural provisions.This will make it clear that the study is mainly focused on the scope of application of time in procedural provisions.When the scope of temporal application is stipulated in the IIA as "this Agreement shall not apply to disputes arising prior to the entry into force of this Agreement",the ambiguity of the provision itself has led to the analysis of the provision by three criteria: dispute,cause of dispute and initiation of dispute settlement procedures.There are different issues under different criteria.In the absence of a temporal scope of application provision arbitral tribunals tend to exercise their discretion to break the principle of non-retroactivity of treaties and to improperly apply the rules of treaty interpretation,resulting in many contradictory decisions.There are two types of situations in which the statute of limitations for IIA arbitration is provided for and not provided for.When there is no provision for a statute of limitations for arbitration,a dispute arises as to whether the statute of limitations is recognized as customary international law.Where the statute of limitations is provided for,the question arises as to the calculation of the point of commencement and the date of termination.In the starting point,the degree of knowledge of the investor’s loss or damage is not clear,and some arbitral tribunals use their discretion to recalculate the statute of limitations by finding the host country’s conduct to be a continuing breach.Some IIAs are vague as to the expiration date of the statute of limitations for arbitration,which has led to disputes.In addition,there is an urgent need for further discussion on whether MFN clauses can be extended to dispute settlement clauses and thus circumvent the statute of limitations for arbitration.Through the analysis of the above issues and focusing on the provisions of China’s investment agreements ratione temporis,the two problems of ambiguity and gaps in the provisions are summarized.Three suggestions for improvement are proposed to clarify the language of China’s investment agreements,strengthen the interpretation of investment agreements by the contracting parties and strictly comply with the principle of non-retroactivity of treaties.This has positive significance for China’s flexible response to jurisdiction ratione temporis in the future.