The Tribunal shall apply the well-established principle that the party alleging a violation of international law giving rise to international responsibility has the burden of proving its assertion. If said Party adduces evidence that prima facie supports its allegation, the burden of proof may be shifted to the other Party, if the circumstances so justify.
Award ¶ 95. Thunderbird alleges that it provided sufficient evidence of a prima facie case of violations of international law, and that the tribunal erred when it failed to require Mexico to produce any additional evidence of its own to rebut the presumption arising from that showing.
1. Except as provided in paragraph 2, the costs of arbitration shall in principle be borne by the unsuccessful party. However, the arbitral tribunal may apportion each of such costs between the parties if it determines that apportionment is reasonable, taking into account the circumstances of the case.
2. With respect to the costs of legal representation and assistance referred to in article 38, paragraph (e), the arbitral tribunal, taking into account the circumstances of the case, shall be free to determine which party shall bear such costs or may apportion such costs between the parties if it determines that apportionment is reasonable.
UNCITRAL Arbitration Rules, art. 40. Undeterred by the rule's plain language, Thunderbird cites prior NAFTA and UNCITRAL arbitrations for the proposition that precedent from those arbitrations has narrowed the rule's wide scope. Nothing in those decisions, however, persuades the court that they have meaningfully narrowed the discretion granted in the rule. Even if Thunderbird had identified such precedent, its argument would still fail, as Thunderbird has not shown that the panel expressly recognized that precedent as controlling and nonetheless refused to apply it. LaPrade, 246 F.3d at 706.
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