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date: 24 January 2021

Abstract and Keywords

This article considers the ‘prima-facie test’ that has been applied by investment treaty tribunals to the claimant's case as the threshold for jurisdiction. 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, this article discusses the provisions in some recent US investment protection agreements and the recent amendment to the rules of the International Centre for Settlement of Investment Disputes (ICSID) that incorporate a procedure akin to the ‘motion to dismiss’ in US law.

Keywords: prima-facie test, jurisdiction, threshold, claimant, protection agreements

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