brought under the dominican republic - central america - ita

proof or the Claimant‟s allegations must be considered unproven, with necessarily
adverse consequences for the Claimant‟s jurisdictional case. 3
2.5. At an early jurisdictional stage of an arbitration, as regards facts alleged by a claimant
in its pleadings but not admitted or even denied by a respondent, the Tribunal
acknowledges that it is often said that an arbitration tribunal is required to test the
factual basis of a claimant‟s claim by reference only to a “prima facie” standard – as
regards the merits of such claim. That standard was most clearly expressed by Judge
Higgins in the well-known passage from her separate opinion in Oil Platforms; and
it has been applied, as a general practice, by many tribunals in addressing jurisdictional
objections made in many investor-state arbitrations. 4
2.6. In this case, as regards the Respondent‟s several jurisdictional objections, the Tribunal
is not minded to accept the Claimant‟s submissions, for two reasons.
2.7. First, this Tribunal has already received from both Parties a substantial mass of written
and oral evidence, including the cross-examination of certain important witnesses
at the Hearing. Accordingly, having received such extensive evidential materials
directed at factual issues, the Tribunal thinks it inappropriate to apply to those
issues a lesser standard of proof in favour of the Claimant, when the Tribunal can arrive
fairly at its decision on a sufficient evidential record to which both Parties have
had a full opportunity to contribute and, moreover, have also substantially contributed.
2.8. Second, but more importantly, the Tribunal considers that it is impermissible for the
Tribunal to found its jurisdiction on any of the Claimant‟s CAFTA claims on the basis
of an assumed fact (i.e. alleged by the Claimant in its pleadings as regards jurisdiction
but disputed by the Respondent). The application of that “prima facie” or
other like standard is limited to testing the merits of a claimant‟s case at a jurisdictional
stage; and it cannot apply to a factual issue upon which a tribunal‟s jurisdiction
directly depends, such as the Abuse of Process, Ratione Temporis and Denial of
3
4
Jurisdiction Reply, § 12.
These materials are considered by Schreuer (et al), The ICSID Convention: A Commentary (2 nd ed), pp.
540-542.
Part 2 – Page 2