Originally from  Jurisdiction in Investment Treaty Arbitration - IAI Series No. 8

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Christoph Schreuer 

This may be a rather narrow point, but I think perhaps the best illustration of the difference between jurisdiction ratione temporis and the application of substantive law ratione temporis arises in cases where the BIT limits the jurisdiction of a tribunal to disputes arising after its entry into force.  Now, at first sight, one would assume anything that happens before the BIT’s entry into force would therefore not be relevant.  But of course, there is a difference between the development of facts and the occurrence of acts or the commission of tortious acts by the host State, and the development of a dispute.  In fact, there is a typical sequence of events.  First, you have certain actions by the host State, and you get reactions by the investor. Then, after a while, this may crystallize into a dispute, and in the meantime the BIT enters into force.  Now, does the dispute fall under the jurisdiction of the tribunal?  Several tribunals – and I think Maffezini is perhaps the most prominent one – have said yes.  The fact that the dispute must arise after the BIT’s entry into force does not mean that the acts that violate the BIT must have occurred after the entry into force of the BIT. That of course leads to the next question: which substantive law is then applicable to the acts that occurred before the BIT’s entry into force?  And that cannot possibly be the BIT, unless of course the law is identical.  But let us assume it is not.  In that situation, the BIT tribunal will then have to apply a body of law that prevailed before the BIT’s entry into force.  I hope you are still with me.