- Table of Cases
- Table of International Treaties and Conventions
- Table of Rules and Resolutions
- Table of Legislation
- List of Contributors
- Policy Issues
- Investment, Investor, Nationality, and Shareholders
- Applicable Law
- Multilateral Investment Rules Revisited
- Interactions Between Investment and Non-investment Obligations
- Trade and Investment
- Admission and Establishment
- Standards of Treatment
- Coverage of Taxation Under Modern Investment Treaties
- Most-Favoured-Nation Treatment
- Emergency Exceptions: State of Necessity and <i>Force Majeure</i>
- Investment Insurance
- State Responsibility and Attribution
- Regulatory Transparency
- Corporate Social Responsibility
- Methods of Dispute Resolution
- Procedural Transparency
- Independence, Impartiality, and Duty of Disclosure of Arbitrators.
- Consent to Arbitration
- Jurisdiction and Admissibility
- The Jurisdictional Threshold of a Prima-Facie Case
- The Relationship between International Tribunals and Domestic Courts
- Parallel Proceedings
- Compensation, Damages, and Valuation
- Review of Awards
- An Appellate System in International Investment Arbitration?
- Compliance and Enforcement
- A Doctrine of Precedent?
- Tribunal's Powers versus Party Autonomy
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.
Audley Sheppard is Partner, Clifford Chance LLP; Rapporteur of the ILA International Arbitration Committee (1996-2006).
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