brought under the dominican republic - central america - ita
brought under the dominican republic - central america - ita
brought under the dominican republic - central america - ita
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Benefits issues in this case. In <strong>the</strong> context of factual issues which are common to<br />
both jurisdictional issues and <strong>the</strong> merits, <strong>the</strong>re could be, of course, no difficulty in<br />
joining <strong>the</strong> same factual issues to <strong>the</strong> merits. That, however, is not <strong>the</strong> situation here,<br />
where a factual issue relevant only to jurisdiction and not to <strong>the</strong> merits requires more<br />
than a decision pro tempore by a tribunal.<br />
2.9. The Phoenix award makes <strong>the</strong> point clearly, as follows:<br />
“In <strong>the</strong> Tribunal‘s view, it cannot take all <strong>the</strong> facts as alleged by <strong>the</strong> Claimant as<br />
granted facts, as it should do according to <strong>the</strong> Claimant, but must look into <strong>the</strong> role<br />
<strong>the</strong>se facts play ei<strong>the</strong>r at <strong>the</strong> jurisdictional level or at <strong>the</strong> merits level, as asserted by<br />
<strong>the</strong> Respondent.<br />
If <strong>the</strong> alleged facts are facts that, if proven, would constitute a violation of <strong>the</strong> relevant<br />
BIT, <strong>the</strong>y have indeed to be accepted as such at <strong>the</strong> jurisdictional stage, until<br />
<strong>the</strong>ir existence is ascertained or not at <strong>the</strong> merits level. On <strong>the</strong> contrary, if jurisdiction<br />
rests on <strong>the</strong> existence of certain facts, <strong>the</strong>y have to be proven at <strong>the</strong> jurisdictional<br />
stage.‖ 5<br />
Accordingly, this Tribunal is here required to determine finally whe<strong>the</strong>r it has jurisdiction<br />
over <strong>the</strong> Claimant‟s CAFTA claims on <strong>the</strong> proven existence of certain facts<br />
because all relevant facts supporting such jurisdiction must be established by <strong>the</strong><br />
Claimant at this jurisdictional stage and not merely assumed in <strong>the</strong> Claimant‟s favour.<br />
2.10. The Tribunal <strong>the</strong>refore decides, in regard to all disputed facts relevant to <strong>the</strong> jurisdictional<br />
issues <strong>under</strong> CAFTA not to apply <strong>the</strong> lesser “prima facie” standard in favour<br />
of <strong>the</strong> Claimant; but, ra<strong>the</strong>r, <strong>the</strong> higher standard of proof applicable to both Parties‟<br />
cases, whe<strong>the</strong>r it be described as <strong>the</strong> preponderance of <strong>the</strong> evidence or a standard<br />
based on a balance of probabilities. In arriving at this decision, <strong>the</strong> Tribunal has<br />
noted that <strong>the</strong> Respondent‟s jurisdictional objection based on Abuse of Process by<br />
<strong>the</strong> Claimant does not, in legal <strong>the</strong>ory, operate as a bar to <strong>the</strong> existence of <strong>the</strong> Tribunal‟s<br />
jurisdiction; but, ra<strong>the</strong>r, as a bar to <strong>the</strong> exercise of that jurisdiction, necessarily<br />
assuming jurisdiction to exist. For present purposes, <strong>the</strong> Tribunal considers this to be<br />
a distinction without a difference.<br />
5<br />
Phoenix Action Ltd v. Czech Republic, ICSID Case No. ARB/06/5, Award, 15 April 2009, §§ 60-61.<br />
[Phoenix v. Czech Republic]<br />
Part 2 – Page 3