brought under the dominican republic - central america - ita

Benefits issues in this case. In the context of factual issues which are common to
both jurisdictional issues and the merits, there could be, of course, no difficulty in
joining the same factual issues to the merits. That, however, is not the situation here,
where a factual issue relevant only to jurisdiction and not to the merits requires more
than a decision pro tempore by a tribunal.
2.9. The Phoenix award makes the point clearly, as follows:
“In the Tribunal‘s view, it cannot take all the facts as alleged by the Claimant as
granted facts, as it should do according to the Claimant, but must look into the role
these facts play either at the jurisdictional level or at the merits level, as asserted by
the Respondent.
If the alleged facts are facts that, if proven, would constitute a violation of the relevant
BIT, they have indeed to be accepted as such at the jurisdictional stage, until
their existence is ascertained or not at the merits level. On the contrary, if jurisdiction
rests on the existence of certain facts, they have to be proven at the jurisdictional
stage.‖ 5
Accordingly, this Tribunal is here required to determine finally whether it has jurisdiction
over the Claimant‟s CAFTA claims on the proven existence of certain facts
because all relevant facts supporting such jurisdiction must be established by the
Claimant at this jurisdictional stage and not merely assumed in the Claimant‟s favour.
2.10. The Tribunal therefore decides, in regard to all disputed facts relevant to the jurisdictional
issues under CAFTA not to apply the lesser “prima facie” standard in favour
of the Claimant; but, rather, the higher standard of proof applicable to both Parties‟
cases, whether it be described as the preponderance of the evidence or a standard
based on a balance of probabilities. In arriving at this decision, the Tribunal has
noted that the Respondent‟s jurisdictional objection based on Abuse of Process by
the Claimant does not, in legal theory, operate as a bar to the existence of the Tribunal‟s
jurisdiction; but, rather, as a bar to the exercise of that jurisdiction, necessarily
assuming jurisdiction to exist. For present purposes, the Tribunal considers this to be
a distinction without a difference.
5
Phoenix Action Ltd v. Czech Republic, ICSID Case No. ARB/06/5, Award, 15 April 2009, §§ 60-61.
[Phoenix v. Czech Republic]
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