Investor Presentaiton
48
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
(iv) Limitation periods
Many recent IIAs include a limitation period, which is a regular
feature in domestic laws. A limitation period is the maximum time
after an event that legal proceedings based on that event may be
initiated. The triggering event for the running of the limitation
period is generally when the investor first knew, or should have
known, of the alleged breach and of the loss or damage arising
there-from. It is important to clearly specify whether the limitation
period runs from the date of the measure or from the time the
investor discovered, or reasonably should have discovered, the loss
or damage.
Though in many cases the limitation period is self-evident,
difficult questions arise in cases involving a "continuing breach",
when the initial act occurs outside the limitations period but is
continued or renewed within the period.³6
Often IIAS limit the relevant time period to three years, but
sometimes it can be equal to five years (relevant examples are
provided in Table 1).
Table 1. Treaty examples of limitation periods
ASEAN-China Investment
Agreement (2009)
Article 14(6)(a)
"The submission of a dispute to
conciliation or arbitration [...]
shall be conditional upon:
(a) the submission of the dispute to
such conciliation or arbitration
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Japan-Switzerland
Agreement on Free Trade
and Economic Partnership
(2009)
Article 94.5
"[N]no investment dispute may
be submitted to conciliation or
arbitration under paragraph 3,
if more than five years have
elapsed since the date on which
This was the case in UPS v. Canada (UNCITRAL), Award on the
Merits, 11 June 2007, paras. 23-30.
UNCTAD Series on International Investment Agreements IIView entire presentation