Denunciation, Termination and Survival: The Interplay of Treaty Law and International Investment Law

ICSID Review, Forthcoming

24 Pages Posted: 26 Feb 2016

See all articles by Tania Voon

Tania Voon

University of Melbourne - Law School

Andrew D. Mitchell

University of Melbourne - Law School

Date Written: February 21, 2016

Abstract

Recent developments in relation to the termination of international investment agreements (IIAs) raise a number of issues at the intersection of treaty law and investment law. This article examines some of the key aspects of treaty law as they relate to the termination of IIAs. The article addresses recent state practice in relation to the denunciation of or withdrawal from multi-party treaties related to investment including the ICSID Convention and the Energy Charter Treaty, leading to complicated questions about the effective date of termination and the implications for new or ongoing investment claims. The article also examines the unilateral termination of bilateral treaties, for example by South Africa and Indonesia, and the mutual termination of such treaties, for example within the European Union and as a result of conclusion of newer treaties such as the Trans-Pacific Partnership. In this regard, the article considers the consequences of sunset clauses, introduced because of the long-term nature of foreign investments, which can make it harder for States to extract themselves from investment obligations. These developments highlight the importance of clarity in drafting termination clauses and agreeing to terminate an IIA, so as to avoid disputes about the impact of a survival clause or its interaction with general treaty law.

Suggested Citation

Voon, Tania and Mitchell, Andrew D., Denunciation, Termination and Survival: The Interplay of Treaty Law and International Investment Law (February 21, 2016). ICSID Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2735974

Tania Voon

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Andrew D. Mitchell (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
+61383441098 (Phone)
+61393472392 (Fax)

HOME PAGE: http://www.law.unimelb.edu.au/staff/Andrew%20Mitchell

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