Jurisdiction Ratione Temporis in Successive International Investment Agreements: What Can Chinese Investors Learn from the Ping An Case?

Abstract

China's foreign investment has been growing rapidly since 1990s. In this course, the first investor-state arbitration case raised by a mainland Chinese investor, Ping An v. Belgium, drew attention to an important issue - jurisdiction ratione temporis in successive international investment agreements. It is controversial in theory and practice as to whether the basic principle of non-retroactivity should apply to the dispute settlement clause in a successive agreement. This is especially true when tribunals are interpreting different kinds of jurisdictional clauses. This paper will take the Ping An Case as an opportunity to thoroughly analyze the issue of temporal jurisdiction in successive international investment agreements. Based on such analysis, this paper will also do reflection on relevant articles in China's existing investment agreements, providing suggestions to China regarding the issue of jurisdiction ratione temporis, in an effort to make arbitration more certain and avoid possible dismissal, as occurred in the Ping An Case.