Do investment treaties have limitation periods?
Some do, but they are the minority. A 2012 OECD survey, as cited in Salini Impregilo v Argentina, found that only 7% of the treaties surveyed barred arbitration for a claim brought outside a set period. Newer trade-agreement chapters usually carry a limit. The Energy Charter Treaty (ECT) and the International Centre for Settlement of Investment Disputes (ICSID) Convention do not. The survey is 14 years old, and we found no newer share. Our guide to investment treaty arbitration covers the framework.
Where a clause exists, it sits inside the state's consent to arbitrate, so a late claim fails for want of jurisdiction. The Ansung Housing v China tribunal said so of Article 9(7) of the 2007 China-Korea bilateral investment treaty (BIT), which sets three years.
How long do investors have under the main treaties?
Three or four years where a trade text sets a limit, and none under the ECT.
| Treaty and article | Time limit | What the text counts |
|---|---|---|
| USMCA Annex 14-D, Art 14.D.5.1(c) | Four years | From first knowledge of breach and loss; a domestic-court step also applies |
| CAFTA-DR, Art 10.18.1 | Three years | Same test; clock ends when the notice of arbitration is received |
| CPTPP (TPP Chapter 9), Art 9.21.1 | Three years and six months | Same test; clock ends when the notice or request is received |
| CETA, Arts 8.19.6 and 8.19.8 | Three years | To the request for consultations; the claim follows within 18 months |
| ECT, Art 26 | None | Three-month amicable-settlement period only |
Annex 14-D applies only between Mexico and the United States (see investment disputes involving Mexico). The NAFTA text gave three years, as quoted in the Grand River decision on jurisdiction (Articles 1116(2) and 1117(2)).
CETA's investor-state articles are not provisionally applied. The Council decision on provisional application lists only Articles 8.1 to 8.8, 8.13, 8.15 (except paragraph 3) and 8.16 of the investment chapter. Articles 8.19 to 8.23, on consultations and claims, are not among them.
When does the clock start, and can a later measure restart it?
The clock starts when the investor first knew, or should have known, of the breach and of its loss. Both limbs count, on an objective standard (Spence v Costa Rica, ICSID Case No. UNCT/13/2). In Grand River v United States, the NAFTA tribunal found no proof of actual knowledge. It held that claimants of that size, in a regulated trade, should have known of the state escrow statutes before 12 March 2001. It dismissed the claims on earlier measures.
Loss need not be quantified. Spence said the clock starts with "the first appreciation of loss or damage in consequence of a breach".
A later step rarely restarts it. A continuing course of conduct "cannot without more renew the limitation period" (Spence). In Corona Materials v Dominican Republic (ICSID Case No. ARB(AF)/14/3), an unanswered motion for reconsideration was "nothing but an implicit confirmation of its previous decision". A later act that is a claim in its own right is different: Grand River sent the 2001 to 2004 measures on to the merits. Spence warns that its findings are heavily fact specific.
Does a notice of intent or a cooling-off period stop the clock?
No, not in the texts reviewed. A claim counts as submitted when the notice or request for arbitration is received, not when the notice of intent is sent. In Ansung, the notice of intent went out on 19 May 2014 and the request reached ICSID on 7 October 2014. The tribunal held that the period ends on deposit of the request, and found the claim time-barred.
CETA is the exception: Article 8.20.5 switches off Articles 8.19.6 and 8.19.8 during agreed mediation. Waiting periods still apply, at least 180 days after the consultation request under CETA and six months under CPTPP. See our explainer on the notice of intent.
What happens when a treaty sets no time limit?
Delay can still count against the claimant. In Salini Impregilo v Argentina (ICSID Case No. ARB/15/39), the 1990 Argentina-Italy BIT had no time limit, and the tribunal said international law lays down no general one. It treated extinctive prescription as a question of admissibility and named prejudice to the respondent as the decisive factor. Argentina's objection failed, in part because the claimant had taken part in renegotiation.
How can you spot a time-limit problem before it is filed?
Ask how old the earliest measure is. A lead is only as fresh as the first government act behind it. Grand River barred every claim on a measure before 12 March 2001. In Corona, the ministry refused the environmental licence on 18 August 2010, almost four years before the request reached ICSID on 10 June 2014.
By comparison, Eiser v Spain (ICSID Case No. ARB/13/36) was registered about five months after the Royal Decree-Law of 12 July 2013, and TC Energy filed about ten months after the executive order of 20 January 2021.
In our view, a business development team should ask for the date of the earliest measure first. Our page on early warning for investment treaty disputes describes how monitoring puts new government actions in front of counsel while a claim can still be built. Our guide to detecting investment treaty disputes early covers the signals.
The practical takeaway
The date that matters is usually older than the first call from the client. CAFTA-DR, CPTPP and USMCA run three, three and a half and four years, each counted from the investor's knowledge, so the first measure is the one to find. Monitoring tools such as DSPT Finder focus on new government actions and freshly served notices of dispute. A team can then see how old a measure is before it approaches the investor. This article describes treaty texts. It gives no advice on any claim.
For more on this topic, see our explainer on the notice of intent in investment arbitration and our piece on how the ECT sunset clause limits who can still sue.
Frequently asked questions
What is a limitation period in investment treaty arbitration?
It is the treaty's cut-off for filing a claim, usually counted from when the investor first knew, or should have known, of the breach and its loss. CAFTA-DR Article 10.18.1 sets three years; USMCA Annex 14-D sets four.
Does the Energy Charter Treaty have a time limit for filing a claim?
No. Article 26 sets no limitation period, only a three-month period for amicable settlement. Delay can still be argued as an admissibility issue, as in Salini v Argentina, where the BIT had no limit.
How long do investors have to file under USMCA and CETA?
USMCA Annex 14-D allows four years from first knowledge of the breach and loss, plus a domestic-court step. CETA allows three years to request consultations, then 18 months to file, but its investor-state articles are not provisionally applied.
Does sending a notice of intent stop the limitation clock?
In the texts reviewed, no. A claim counts as submitted when the notice or request for arbitration is received (CAFTA-DR Article 10.16.4). The Ansung tribunal held the period ended when the request was filed, not at the notice of intent. CETA mediation is the exception.
How does early detection help with treaty time limits?
Seeing the first government measure early fixes the earliest date the clock could have started. Tools such as DSPT Finder, which monitor new government actions, let a team check a measure's age before approaching an investor. Counsel and the treaty text decide the deadline.