brought under the dominican republic - central america - ita

came applicable to Claimant.” 80 The Respondent shared this analysis, here cited (for
example) from its Jurisdiction Reply: “The relevant issue [for jurisdiction ratione
temporis] is the date on which the measure, act, or fact that constitutes the alleged
breach took place.” 81 There is here no reference to a claimant‟s knowledge or
awareness of an alleged breach or present or future dispute.
2.103. The general principle of non-retroactivity in the law of international treaties, unless
there is a specific indication to the contrary, is well established. This principle is
embodied in CAFTA‟s Article 10.1 (cited in the Annex to Part 1 above). It is codified
in Article 28 of the Vienna Convention on the Law of Treaties, which provides:
“Unless a different intention appears from the treaty or is otherwise established, its
provisions do not bind a party in relation to any act or fact which took place or any
situation which ceased to exist before the date of the entry into force of the treaty
with respect to that party.” In its 1966 Commentaries to the Draft Articles of the
Law of Treaties, the International Law Commission stated: “There is nothing to prevent
the parties from giving a treaty, or some of its provisions, retroactive effect if
they think fit. It is essentially a question of their intention. The general rule however
is that a treaty is not to be treated as intended to have retroactive effects unless such
an intention is expressed in the treaty or was clearly to be implied from its terms.” 82
It would be possible to add to these legal materials; but it is unnecessary to do so
given that this general principle is not materially disputed by the Parties.
2.104. Where there is an alleged practice characterised as a continuous act (as determined
above by the Tribunal) which began before 13 December 2007 and continued thereafter,
this Tribunal would have jurisdiction ratione temporis over that portion of the
continuous act that lasted after that date, regardless of events or knowledge by the
Claimant before 13 December 2007. The Tribunal concludes that this solution is different
from that reached in its analysis of the Abuse of Process issue, as here explained.
80
81
82
The Claimant‟s Post-Hearing Submissions, § 8.
Jurisdiction Reply, § 191.
Yearbook of the International Law Commission, 1966, Vol. II, p. 211.
Part 2 – Page 33