“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
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
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
Sergei Viktorovich Pugachev v. The Russian Federation, Interim Award, 7 July 2017, para. 271; United Utilities (Tallinn) B.V. and Aktsiaselts Tallinna Vesi v. Republic of Estonia, ICSID Case No. ARB/14/24, Decision on Respondent’s Application for Provisional Measures, 12 May 2016, para. 78; International Quantum Resources Limited, Frontier SPRL and Compagnie Minière de Sakania SPRL v. Democratic Republic of the Congo, ICSID Case No. ARB/10/21, Procedural Order No. 3, 28 November 2011, para. 40; Lao Holdings N.V. v. Lao People’s Democratic Republic (I), ICSID Case No. ARB(AF)/12/6, Decision on Claimant’s Amended Application for Provisional Measures, 17 September 2013, para. 12.
III. Origins of the prima facie test in provisional measures proceedings
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
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
The Mavrommatis Palestine Concessions, PCIJ Series A. No 2, Judgment (Objection to the Jurisdiction of the Court), 30 August 1924, p. 10; Anglo-Iranian Oil Co (United Kingdom v Iran), Order-Request for the Indication of Interim Measures of Protection, 5 July 1951, p. 93; Nuclear Tests (New Zealand v France), Order-Request for the Indication of Interim Measures of Protection, Fixing of Time-Limits: Memorial and Counter-Memorial, 22 June 1973, paras. 14, 22; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Order-Request for the Indication of Provisional Measures, 8 April 1993, para. 14.
Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Order-Request for the Indication of Provisional Measures, 19 April 2017, para. 17; Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Order- Request by Nicaragua for the Indication of Provisional Measures, 13 December 2013, para 12; Immunities and Criminal Proceedings (Equatorial Guinea v. France), Order- Request for the Indication of Provisional Measures, 7 December 2016, paras. 33, 68-69; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Order- Request for the Indication of Provisional Measures, 23 July 2018, para. 41; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Order, 23 January 2020, paras. 17, 31.
IV. Standards of prima facie jurisdiction in arbitral tribunals
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
Two key issues arise with respect to the specific application of the test:
Bendone-Derossi International v. The Government of the Islamic Republic. of Iran, IUSCT Case No. 375, Interim Award (Award No. ITM 40-375-1), 7 June 1984, paras. 13, 16, 17; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Order – Request for the Indication of Provisional Measures, 10 May 1984, para. 25; Merrills, J.G., Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice, The International & Comparative Law Quarterly, 1995, pp. 90, 92.
Bear Creek Mining Corporation v. Republic of Peru, ICSID Case No. ARB/14/21, Procedural Order No. 2, 19 April 2015, para. 48; Millicom International Operations B.V. and Sentel GSM S.A. v. Republic of Senegal, ICSID Case No. ARB/08/20, Decision on the Application of Provisional Measures, 9 December 2009, para. 43(a).
Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 1 (Provisional Measures), 31 March 2006, para. 70; Dawood Rawat v. Republic of Mauritius, PCA Case No. 2016-20, Order Regarding Claimant’s and Respondent’s Request for Interim Measures, 11 January 2017, para. 86.
V. Difference between institutional and ad hoc arbitrations
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
Perenco Ecuador Ltd. v. Republic of Ecuador (Petroecuador), ICSID Case No. ARB/08/6, Decision on Provisional Measures, 8 May 2009, para. 39; Millicom International Operations B.V. and Sentel GSM S.A. v. Republic of Senegal, ICSID Case No. ARB/08/20, Decision on the Application of Provisional Measures, 9 December 2009, para. 43(a); PNG Sustainable Development Program Ltd. v. Independent State of Papua New Guinea, ICSID Case No. ARB/13/33, Decision on the Claimant’s Request for Provisional Measures, 21 January 2015, paras. 104, 119.
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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.
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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.
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.