국제투자중재(ISDS) 사건의 시적 관할 －제척기간을 중심으로－

In international investment arbitration (ISDS) cases, temporal jurisdiction is a frequent and robust defense, but its importance lacks sufficient research. Many investment treaties include time-bar clauses, making the determination of their starting points a recurring issue. For continuing or composite acts, many awards have held that the limitation period is renewed or extended, potentially over-expanding temporal jurisdiction. To avoid this, limitations should adhere strictly to treaty text, using the claimant’s knowledge as the starting point and strictly interpreting continuing or composite acts during jurisdictional analysis. Regarding loss or damage, some awards postpone the limitation period’s start by requiring claimants to have certainty about the actual loss. However, treaties only require knowledge of the existence of loss or damage, not its extent or amount. Expanding jurisdiction beyond treaty text is unjustified. A related issue is whether limitation periods can be interrupted. While negotiations or assurances from respondents may delay arbitration, suspension of limitation periods is difficult unless explicitly provided for in the treaty. Many awards address this through estoppel, barring respondents from invoking time-bar defenses. For treaties without explicit time-bar clauses, implicit limitation periods remain contested. Although many awards acknowledge their existence, no case has denied temporal jurisdiction solely based on implicit time-bars. Continued research and case analysis are needed in addressing temporal jurisdiction in ISDS cases.