Rights and Obligations in the Post Investment Treaty Denunciation Period

Abstract

Buried at the back of most international investment agreements are denunciation provisions, which before the twenty-first century, were rarely remarked upon. In this century, however, a vibrant body of academic scholarship on treaty dissolution continues to take shape, coinciding with a growing dissatisfaction with the institutions of international investment law. This has culminated in the denunciation of the ICSID Convention by three Latin American countries (Bolivia, Venezuela and Ecuador), the termination of Bilateral Investment Treaties ( BITs) and intimations on further terminations. These growing voices of discontent have forced the architects of international investment law to consider new innovative approaches to international investment dispute settlement. They have also resurrected denunciation provisions marred with questions over the rights and obligations of states and investors during the notice phase and in the post-termination period. This article focuses particularly on the right to invoke international dispute resolution provisions within investment treaties by examining the right to access international dispute resolution mechanisms such as ICSID arbitration, following a withdrawal from the ICSID Convention and during the sunset and notice periods. This article will inform foreign investors in host states that have intimated a desire to terminate BITs and withdrawal from the ICSID Convention, on their continuing rights and obligations under the relevant treaties.

Keywords: Bilateral Investment Treaties; Dispute Resolution; ICSID; Investor-State Arbitration; Notice; Sunset Clauses; Withdrawal