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Part III Procedural Issues, Ch.23 The Jurisdictional Threshold of a Prima-Facie Case

Audley Sheppard

From: The Oxford Handbook of International Investment Law

Edited By: Peter T Muchlinski, Federico Ortino, Christoph Schreuer

From: Investment Claims (http://oxia.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. date: 28 November 2023

Jurisdiction — Admissibility — International investment law — International courts and tribunals, decisions — Interim and provisional measures — Arbitral tribunals

This chapter considers the ‘prima-facie test’ that has been applied by investment treaty tribunals to the claimant's case as the threshold for jurisdiction. It examines its origins in the international courts. It observes the uncertainty as to the precise formulation of the test, and the more recent attempts to clarify how the test might apply to different aspects of the claimant's case. While the application by tribunals of the prima-facie test has shown it to be a low threshold, in a few cases tribunals have struck out some or all of the claimant's claims on the basis that the claimant's own articulation of its case would not fall within the provisions of or amount to a breach of the treaty invoked. Finally, provisions in some recent US investment protection agreements and the recent amendment to the ICSID Rules that incorporate a procedure akin to the ‘motion to dismiss’ in US law are noted.

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