Author

Mr Darío Maestro Navarro

Member - Madrid Bar

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Prima facie jurisdiction

I. Definition

1.

Prima facie jurisdiction”1 is an expression used to describe the test of first impression in international adjudication. Underlying this is the well-settled principle that an international tribunal may reach interim decisions in the case prior to determining that it has jurisdiction over the merits of the dispute—if it appears that there is a plausible source for asserting such jurisdiction.2

II. Prima facie jurisdiction is often required for interim relief

2.

The issue of prima facie jurisdiction often arises in the context of an application to obtain provisional measures. Generally, the requesting party must satisfy the following requirements: (i) prima facie jurisdiction of the tribunal; (ii) prima facie existence of a right susceptible of protection; (iii) necessity of the measure requested; (iv) urgency of the measure requested; and (v) proportionality of the measure requested.3

3.

To establish prima facie jurisdiction, many international tribunals consider whether the legal claims brought before them are “capable of falling within” the legal instrument and applicable rules in question.4 Tribunals generally try to avoid expressing their views on the merits, given that the determination of prima facie jurisdiction is usually made before the tribunal considers a significant amount of evidence presented by both parties.5

III. Origins of the prima facie test in provisional measures proceedings

4.

The prima facie test was originally crafted by the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ) for the purpose of examining jurisdiction ratione materiae.6 In 1984, in Nicaragua v. United States of America, the ICJ stated for the first time that it could not order provisional measures unless the applicant satisfied a prima facie test on its jurisdiction.7

5.

Today, most arbitral tribunals recognise the test of prima facie jurisdiction8 as the first of five preconditions (mentioned above) that a requesting party needs to meet where provisional measures are requested. It allows a tribunal to examine the jurisdictional bases of the claims and inter alia to exclude clearly unfounded claims or inadmissible applications.9

IV. Standards of prima facie jurisdiction in arbitral tribunals

6.

Where arbitral tribunals have had to evaluate their prima facie jurisdiction, they have often reached decisions to (a) decline jurisdiction and thus interim relief,10 (b) confirm prima facie jurisdiction without granting provisional measures,11 (c) find the test satisfied and order provisional measures,12 or (d) proceed to the merits directly.13 A minority of tribunals also found that a prima facie showing was not necessary to act on the legal claims pending before them.14

7.

Two key issues arise with respect to the specific application of the test:

  • On the question of which party should demonstrate that an arbitration agreement under the applicable rules exists,15 binding the parties to refer the dispute to the selected forum,16 tribunals generally find that claimants bear the burden of proof.17
  • In respect of whether respondents must also satisfy the test so as to formulate jurisdictional observations, a majority of tribunals consider the test should be waived.18 Consequently, tribunals will reach a decision on their prima facie jurisdiction on the basis of the claimant’s arguments.19

V. Difference between institutional and ad hoc arbitrations

8.

There are usually two options in international arbitration: either tribunals make an evaluation of jurisdiction when interim relief is requested, or the institution seeks to endow itself with a ground or foundation to conduct an administrative analysis.

9.

In the latter, arbitral institutions like the International Centre for Settlement of Investment Disputes (ICSID) (under Article 36(3) of the ICSID Convention) and the International Chamber of Commerce (ICC) (under Articles 6(3) and 6(4) of the ICC Rules) possess the power to make an initial determination on the prima facie existence of an agreement to arbitrate before a tribunal is constituted. Typically, it is the secretariat of the arbitral institution that is responsible “to perform an initial check in order to dismiss immediately any requests manifestly outside the jurisdiction of the centres”.20 In any event, most arbitral tribunals agree that registration of a request for arbitration with the corresponding arbitration centre is insufficient to satisfy the test.21

10.

The first option most often applies to ad hoc Tribunals must reach a preliminary decision on jurisdiction to order interim relief, without the assistance of administrative institutions to guard against arbitrations that have no jurisdictional basis at all.22

Bibliography

Anton, D.K., Mathew, P. and Morgan W., International Law: Cases and Materials, 2005.

Bismuth, R., Anatomy of the Law and Practice of Interim Protective Measures in International Investment Arbitration, Journal of International Arbitration, 2009, pp. 773-821.

Born, G.B., International Arbitration: Cases and Materials, 2015.

Ferguson, S.M., Interim Measures of Protection in International Commercial Arbitration: Problems, Proposed Solutions, and Anticipated Results, Currents, International Trade Law Journal, 2003, p. 55.

Fortier, L.Y., Interim Measures: An Arbitrators Provisional Views, Contemporary Issues in International Arbitration and Mediation: The Fordham Papers (2008), 2009, pp. 47-57.

Kaplan, N. and Moser, M. (eds.), Jurisdiction, Admissibility and Choice of Law in International Arbitration: Liber Amicorum Michael Pryles, 2016.

Kolb, R., The International Court of Justice, 2013.

Merrills, J.G., Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice, International & Comparative Law Quarterly, 1995 pp. 90-146.

Miles, C.A., Provisional Measures before International Courts and Tribunals, 2017.

Park, W.W., Challenging Arbitral Jurisdiction: The Role of Institutional Rules, pp. 1-44.

Rosenne, S., Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea, 2005.

Sarooshi, D., Provisional Measures and Investment Treaty Arbitration, Arbitration International, 2013, pp. 361-380.

Sheppard, A., The Jurisdictional Threshold of a Prima-facie Case, in Muchlinski, P., Ortino, F., Schreuer, C., The Oxford handbook of International Investment Law, 2008.

Sinclair, A.C. and Odysseas G.R., An Overview of Provisional Measures in ICSID Proceedings, ICSID Review-Foreign Investment Law Journal, 2017, pp. 431-446.

Zaheeruddin, M., The Remedy of Provisional or Interim Measures in International Commercial Arbitration and Conditions for Grant of Such Measures, International Journal of Arts and Commerce, 2015, pp. 77-89

Yeillrmak, A., Provisional Measures in International Commercial, 2005, pp. 19.

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