brought under the dominican republic - central america - ita

PART 2: ISSUE A - ABUSE OF PROCESS
(01) Introduction
2.1. This first issue as to Abuse of Process, as alleged by the Respondent and denied by
the Claimant, was the principal issue raised in the Parties‟ written and oral submissions
at the Hearing. Although, as later determined by the Tribunal in this Decision,
it is not the decisive issue as regards the Respondent‟s jurisdictional objections to
the Claimant‟s CAFTA claims, the Tribunal considers it appropriate to begin with it
as a matter of courtesy to the Parties.
(02) The Burden and Standard of Proof
2.2. The Tribunal has first to establish its general approach to the question of proof for
the purpose of this issue, as with other jurisdictional issues. Two distinct factors are
relevant: (i) the burden of proof, i.e. on which party the obligation rests to prove its
case; and (ii) the standard of proof required to discharge that burden, i.e. whether it
is a “prima facie” standard (as submitted by the Claimant) or a different standard.
2.3. Standard of Proof: As far as the standard of proof is concerned, both in its Jurisdiction
Counter-Memorial and Rejoinder, the Claimant requested the Tribunal to “accept
pro tem the facts as alleged by [the Claimant] to be true and in that light to interpret
[the relevant provisions of the treaty] for jurisdictional purposes;” 2 and the
Claimant cited a number of decisions that have allegedly applied such an approach,
including (in its submission) the Phoenix award.
2.4. In contrast, the Respondent submitted that the Claimant‟s factual allegations relevant
to the Tribunal‟s decision on jurisdiction cannot enjoy any special status as assumed
facts. The Respondent contended that the Claimant must meet its full standard of
2
Jurisdiction Counter-Memorial, § 37.
Part 2 – Page 1