Terminating a Bilateral Investment Treaty

The key provisions are the termination clause and the so-called “survival clause.” Article 54 of the VCLT provides: Article 54: Termination of or withdrawal from a treaty under its provisions or by consent of the parties The termination of a treaty or the withdrawal of a party may take place: a) in conformity with the provisions of the treaty; or b) at any time by consent of all the parties after [...] In 56% of the treaties mapped by UNCTAD, the survival clause has a period of 10 years, and in 20% the survival clause lasts 15 years.9 For example, the 2019 Dutch Model BIT’s survival clause is formulated as follows (Article 26.3): In respect of investments made before the date of the termination of the present Agreement, this Agreement shall continue to be in effect for a further period of fiftee [...] Investment Agreement between the Government of Australia and the Government of the Hong Kong Special Administrative Region of the People's Republic of China. [...] IISD.org 6 Terminating a Bilateral Investment Treaty from the entry into force of the CETA.20 The investment chapter of the 2017 Argentina–Chile free trade agreement (FTA) contains an annex providing for the termination of the 1991 Argentina–Chile BIT upon entry into force of the trade agreement.21 3.2.2 Termination by Consent Without Renegotiation State parties to a BIT may agree to terminate tha [...] In addition, they agreed that the BIT would continue to apply to situations that took place before the entry into force of the trade agreement, provided that the investor initiates any ISDS claim under the BIT within three years of entry into force of the FTA.30 Accordingly, the parties have effectively limited the application of the survival clause to three years.