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Part III Guide to Key Jurisdictional Issues, 13 Burden and Standard of Proof at the Jurisdictional Stage

Baiju S Vasani, Timothy L Foden, Hafsa Zayyan

From: Arbitration Under International Investment Agreements: A Guide to the Key Issues (2nd Edition)

Edited By: Katia Yannaca-Small

From: Investment Claims (http://oxia.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. date: 01 October 2023

Burden of proof (and jurisdiction)

This chapter considers a situation where a respondent party argues that the tribunal is without jurisdiction to hear the claims or counterclaims in the first place. In this case, does the respondent party, as the ‘moving party’, have to prove the lack of jurisdiction? Or is it the claimant who is in fact claiming jurisdiction, who has to prove its existence? Or in light of the fact that jurisdiction is a matter for the tribunal to decide for itself, even sua sponte, does neither party hold the burden of proof on this issue? Recent decisions in international arbitration law demonstrate that the burden of proof at the jurisdictional phase is an issue in flux. Despite a long line of decisions holding, perhaps simplistically, that the burden lies with the claimant, many recent cases have suggested that it can lie with either party, depending on which party is asserting the particular fact.

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