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M. Bruno Hellmeister Lico Canal

Associate - CIArb

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Prima facie case on the merits (Provisional measures)

I. Criteria for granting a provisional measure

1.

Generally, tribunals have recognised that for a provisional measure to be granted there are five requirements: (1) prima-facie jurisdiction; (2) prima-facie establishment of the case (also named prima facie case on the merits or prima facie existence of a right susceptible of protection); (3) urgency; (4) imminent danger of serious prejudice (necessity); and (5) proportionality.1 

2.

Others tribunals when deciding upon security for costs have noted that only four requirements are necessary: (a) prima facie or fumus bonis iuris, there is a reasonable possibility that the party claiming the measure would prevail in the case or that the party possess a right requiring protection (this is one requirement that encompass the concept of both prima-facie jurisdiction and prima-facie establishment of the case); (b) a harm not adequately reparable by an award of damages; (c) the potential harm without the order is substantially outweighed against the harm incurred from the order (proportionality); and (d) urgency.2

3.

If a party asking for a provisional measure is unable to demonstrate that its claim is believable, it will not be granted the said measure, as further demonstrated.

II. The burden of proof

4.

The party asking for provisional measures bears the burden of proving that its claim is believable.3 The other party may bring serious counter-claims that, if proven to be true, will cause the claim to be dismissed; this, however, is unable to cause a provisional measure to be dismissed under the requirement of prima facie case on the merits.4

III. The standard of proof

5.

The party that asks for a provisional measure must show a credible claim, in other words, the requesting party must solely demonstrate that its claim is not frivolous or obviously outside the competence of the tribunal.5 Only in rare circumstances, a measure would be denied under the grounds of no prima facie case on the merits. For example, it would only happen where the requesting party has failed to advance any credible basis for its claims.6 An ICSID tribunal has found that the prima facie threshold is the same as in dismissing a case due being manifestly without legal merit (as Article 41(5) of the ICSID Rules).7

6.

According to some investment tribunals, provisional measures related to the procedural integrity of arbitration do not require a strong showing of serious injury, urgency and a prima facie case.8 Measures not related to the procedural integrity demand strong evidence and a more robust analysis of the proportionality of the measure.9 

IV. The tribunal's prima facie analysis of a claim

7.

Tribunals affirmed that the prima facie assessment is equivalent to the pro tempore In making this prima facie determination, the tribunal must first assume and accept the facts as alleged by the requesting party pro tempore, that is for the time being.10 Then, the tribunal must consider whether the facts alleged are susceptible of constituting breaches of the applicable treaty. In order to perform such task, the tribunal must apply a prima facie standard of review, both in respect of the capacity of the facts to fall within the ambit of the treaty protections and of the understanding of these protections.11

8.

A tribunal is not precluded from ultimately deciding the issues in the arbitration in any particular way after the parties have fully presented their cases on disputed substantive issues, such as jurisdiction12 or the merits of the claims.13

Bibliography

Schreuer, C.H., The ICSID Convention: A Commentary, 2nd ed., Cambridge University Press, 2009.

Commission, J. and Moloo, R., Procedural Issues in International Investment Arbitration, Oxford International Arbitration Series, 2018.

Yannaca-Small, K., Arbitration Under International Investment Agreements: A Guide to the Key Issues, 2nd ed., 2018. 

Yesilirmak, A., Provisional Measures in International Commercial Arbitration, International Arbitration Law Library, Vol. 12, Kluwer Law International, 2005.

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