State Consent, Temporal Jurisdiction, and the Importation of Continuing Circumstances Analysis into International Investment Arbitration

Washington University Global Studies Law Review, Vol. 10, No. 3, p. 419, 2011

59 Pages Posted: 4 Mar 2012 Last revised: 10 Sep 2017

Date Written: 2011

Abstract

Investor-state arbitration tribunals have not always acted with due caution when assessing whether continuing acts and facts can ground their jurisdiction. They have sometimes borrowed reasoning from other fields of law without sufficient justification. Because of the intense scrutiny under which they operate, investor-state arbitration tribunals should be vigilant about clearly stating their reasoning and explicitly grounding their legal analysis in the relevant treaties. That is especially true when deciding on their jurisdiction. This paper argues that whether a tribunal should borrow from other tribunals' temporal jurisdiction reasoning depends on the language and purpose of the temporal limits in the treaty before them.

Continuing circumstances issues arise under two different types of temporal restrictions, each serving distinct purposes. First, some restrictions exclude from jurisdiction acts, facts, situations, or disputes occurring before the treaty entered into force. Second, other restrictions prescribe, effectively, a statute of limitations. The Article examines these two types of restrictions separately, considering their purposes and examining in detail how international tribunals have analyzed continuing circumstances under each.

Note: Full text available at Washington University Global Studies Law Review web page.

Keywords: international, investment, law, arbitration, consent, crisis, legitimacy, ecuador, exit, pull out, ICSID, bilateral, treaty, ratione temporis, jurisdiction, temporal, continuing, act, fact, situation, human rights, jurisprudence, precedent, case law, caselaw, retroactivity, non-retroactivity

Suggested Citation

Blanchard, Sadie, State Consent, Temporal Jurisdiction, and the Importation of Continuing Circumstances Analysis into International Investment Arbitration (2011). Washington University Global Studies Law Review, Vol. 10, No. 3, p. 419, 2011, Available at SSRN: https://ssrn.com/abstract=2015617

Sadie Blanchard (Contact Author)

Notre Dame Law School ( email )

Notre Dame, IN 46556-0780
United States

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