Jurisdiction Ratione Temporis under NAFTA Article 1116(2)

Abstract

The interpretation of “continuing breaches” for the purposes of determining jurisdiction ratione temporis has taken on particular importance in the past several years. Most bilateral and multilateral treaty instruments include clauses that establish temporal limitations on jurisdiction, but they do not explicitly address “continuing breaches.” Recently, NAFTA tribunals have considered this question under the three year time limitation of NAFTA Article 1116(2), but the issue still remains largely unresolved. This paper will analyze “continuing breaches” in both investment law and general international law and conclude that “continuing breaches” are not valid exceptions to established time limitations in investment treaties. Section I will introduce policy considerations; Section II will analyze the specific language of Article 1116(2) in accordance with the Vienna Convention on the Law of Treaties (hereinafter VCLT); Section III will consider international law on jurisdiction ratione temporis and extinctive prescription more broadly, with particular focus on Article 14 of the International Law Commission’s Articles on State Responsibility and the concept of “continuing violations” in international law; Section IV will review the existing jurisprudence of the European and Inter-American human rights systems with respect to “continuing violations;” Section V will examine existing NAFTA jurisprudence that has considered this question; and Section VI will offer general conclusions and prudential considerations on jurisdiction ratione temporis.