The Burden of Proof and Its Exceptions

Cortesi, Giulio Alvaro

doi:10.1007/978-3-030-96343-9_2

Giulio Alvaro Cortesi²⁶

Part of the book series: European Yearbook of International Economic Law ((EYIELMONO,volume 24))

384 Accesses

Abstract

The rule onus probandi incumbit actori dates back to ancient Roman law and is probably one of the most consolidated principles in procedural law (both common and civil law).

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution

Chapter: USD 29.95; Price excludes VAT (USA)

eBook: USD 109.00; Price excludes VAT (USA)

Softcover Book: USD 139.99; Price excludes VAT (USA)

Hardcover Book: USD 139.99; Price excludes VAT (USA)

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

1.
Legum (2018), p. 113.
2.
Verburg (2019), pp. 440–441.
3.
Schill (2010), p. 408.
4.
Schill (2010), p. 423.
5.
Tanzi (2020), p. 63. In international investment arbitration, like in inter-state litigation, the principles in question flow from the three-pronged pillar of an international tribunal’s mandate. Namely, with specific regard to an ICSID tribunal, from (i) its jurisdictional competence under Article 25 of the ICSID Convention; 30 (ii) the rules constituting the applicable law, under Article 42(1) of the said Convention; and (iii) the claims put forward by the parties, which define the contents and scope of the dispute. Such are the boundaries within which investment tribunals exercise their adjudicative function and the principles at hand operate by balancing the autonomy of the parties with that of the adjudicative function.
6.
Legum (2018), pp. 103–104.
7.
Daly et al. (2014), p. 101, para. 5.110, ‘Article 27 (1) states the generally accepted allocation of the burden of proof in international arbitration’.
8.
Ðorðeska (2020), p. 302.
9.
Ðorðeska (2020), p. 301.
10.
Gaillard (2004), p. 154: ‘Quelques principes tels que: ‘la prohibition de tout traitement discriminatoire, bonne foi, et l’interdiction de prendre des mesures contraires à l’ordre public international ou aux principes généraux du droit’.
11.
Historique de le Convention CIRDI, Documents Relatif à l’Origine et à l’Élaboration de la Convention pour le Règlement des Différends Relatif aux Investissements entre États et Ressortissants d’Autres États, Vol. III, Washington D.C., CIRDI, 1968, p. 381: “J’ai exprimé certains doutes quant à la sagesse d’inclure dans la Convention, qui est un document essentiellement procédural et doit rester souple afin de satisfaire les besoins d’espèces extrêmement diverses, des règles de fond provenant du droit international considéré dans son ensemble”.
12.
See Gaillard (2004), p. 154.
13.
ICSID Case no Arb/87/3, Asian Agricultural Products Ltd v. Republic of Sri Lanka, published in 6 ICSID Review – Foreign Investment Law journal (1991), p. 527 et seq., §56.
14.
Kazazi (1996), p. 24: “The phrase ‘burden of proof’ is an ambiguous term in common law countries, since it is used by the court to refer to different meanings. Its primary sense relates to substantive law and refers to the duty of a party to persuade the trier of fact by the end of the case of the truth of certain propositions. This burden is also called legal burden, persuasive burden, the burden of proof on the pleadings, the fixed burden of proof and the risk of non-persuasion”.
15.
Garner (2009), pp. 236–237.
16.
Niyungeko (2005), p. 12.
17.
Petrochilos (2004), p. 219.
18.
Niyungeko (2005), p. 12.
19.
Annuaire de l’Institut de Droit International (I.D.I), vol. 70-1, 2002–2003, p. 141.
20.
Amerasinghe C. F., Final Report, Mars 2002, in Annuaire de l’I.D.I., vol. 70-1, 2002–2003, pp. 345–346.
21.
Niyungeko (2005), p. 13.
22.
Kazazi (1996), p. 38; Cheng (1953), p. 326; Niyungeko (2005), p. 12.
23.
William A. Parker (U.S.A.) v. United Mexican States, 31 March 1926 in Reports of International Arbitral Awards, Vol. IV, p. 39. Available online at http://legal.un.org/riaa/cases/vol_IV/35-41.pdf. “On the contrary, it holds that it is the duty of the respective Agencies to cooperate in searching out and presenting to this tribunal all facts throwing any light on the merits of the claim presented”.
24.
The amount of compensation was $39,000 (Reports of International Arbitral Awards, vol. IV, p. 67). On this case, see also Kazazi (1996), p. 232, n. 20.
25.
Cheng (1953), p. 327. See also, Amerasinghe (2005), p. 63; Kazazi (1996), p. 234; Niyungeko (2005), p. 25.
26.
Amerasinghe (2005), p. 95.
27.
Amerasinghe (2005), p. 95 “the two principles can and do coexist”.
28.
See, for example, Lauterpacht (1958), p. 365; Cheng (1953), p. 327.
29.
Petrochilos (2004), p. 219, n. 232.
30.
Mavroidis et al. (2006), p. 127.
31.
Sourgens et al. (2018), p. 54, para. 2.88.
32.
AAPL v. Sri Lanka, ICSID Case No. ARB/87/3, Award 27 June 1990, §56, Rule (H).
33.
On the general validity of this principle in ICJ jurisprudence, see also Hernandez (2014), p. 59.
34.
Corfù Channel case, Judgment of April 9, 1949, I.C.J. Reports, 1949, p. 4.
35.
Concerning Rights of Nationals of the United States of America in Morocco, Judgment of August 2, 1952; I.C.J. Reports 1952, p. 176.
36.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392.
37.
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation, Judgment, I.C.J. Reports 2018, p. 15.
38.
Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Special Agreement concluded on March 25th, 1948: “The Government of the People’s Republic of Albania, represented by […] And the Government of the United Kingdom of Great Britain and Northern Ireland, represented by […] Have accepted the present Special Agreement, which has been drawn up as a result of the Resolution of the Security Council of the 9th April 1947, for the purpose of submitting to the International Court of Justice for decision the following questions: I) Is Albania responsible under international law for the explosions which occurred on the 22nd October 1946 in Albanian waters and for the damage and loss of human life which resulted from them and is there any duty to pay compensation ? II) Has the United Kingdom under international law violated the sovereignty of the Albanian People’s Republic by reasons of the acts of the Royal Navy in Albanian waters on the 2nd October and on the 12th and 3th November 1946 and is there an’ duty to give satisfaction? […]
39.
This second question should be split into two different questions because there were two actions that, according to Albania, had led to the violation of its sovereignty: the first one, on 22 October 1946, with the English ship simply passing through the Corfu channel, and the second on 12 and 13 November, with a large minesweeping operation in the channel.
40.
Corfù Channel case, Duplique albanaise, Mémoires, vol. II, p. 353: (available only in French) “Le Royaume-Uni a-t-il violé, selon le droit international, la souveraineté de la République Populaire d’Albanie par les actions de la marine de guerre britannique dans les eaux albanaises le 22 octobre 1946 et les 12 et 13 novembre 1946, et y a-t-il lieu à donner satisfaction ?
Le Gouvernement albanais est ici demandeur; il lui appartient de faire la preuve de la règle de droit qu’il invoque et des faits qu’il reproche au gouvernement britannique. Il entend faire cette preuve de façon complète, non par de simples présomptions, mais par des témoignages et documents indiscutables, empruntés, pour, la plupart, aux communications britanniques”.
41.
Niyungeko (2005), p. 35.
42.
Case Concerning Rights of Nationals of the United States of America in Morocco, Judgment of August 2, 1952; I.C.J. Reports 1952, p. 180: “1. The Submissions and Conclusions presented by the French Government in this case should be rejected on the ground that the French Government has failed to maintain the burden of proof which it assumed as party plaintiff and by reason of the nature of the legal issues involved”.
43.
Had they been general customs of international law, the Court itself would have had the duty of ascertaining their existence, according to the principle iura novit curia (on this topic, see infra Sect. 2.4.3).
44.
Case Concerning Rights of Nationals of the United States of America in Morocco, Judgment of August 2,1952; I.C.J. Reports 1952, p. 200: “The second consideration relates to the question of proof. This Court, in the Asylum Case (I.C.J. Reports 1950, pp. 276–277), when dealing with the question of the establishment of a local custom peculiar to Latin-American States, said: ‘The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party’”. On this subject, see also Cheng (1953), p. 333.
45.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392, para 101.
46.
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore), Judgment, I.C.J. Reports 2008, p. 12, para. 45: “It is a general principle of law, confirmed by the jurisprudence of this Court, that a party which advances a point of fact in support of its claim must establish that fact”.
47.
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation, Judgment, I.C.J. Reports 2018, p. 15, at para. 33.
48.
Zimmermann and Tams (2019), p. 1382, para. 35.
49.
Kolb (2014), p. 235.
50.
Dubisson (1964), p. 221.
51.
Dubisson (1964), p. 221: “Il arrive, d’ailleurs, que la règle ‘actori incumbit probatio’ ne s’applique pas, même lorsque la procédure est introduite par voie de requête”.
52.
Neff (2009), p. 64.
53.
Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962: I.C.J. Reports 1962, p. 6: “As concerns the burden of proof, it must be pointed out that though, from the forma1 standpoint, Cambodia is the plaintiff, having instituted the proceedings, Thailand also is a claimant because of the claim which was presented by her in the second submission of the Counter-Memorial and which relates to the sovereignty over the same piece of territory. Both Cambodia and Thailand base their respective claims on a series of facts and contentions which are asserted or put forward by one Party or the other. The burden of proof in respect of these will of course lie on the Party asserting or putting them forward”.
54.
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Preliminary objections, Judgment of 4 February 2021, Separate opinion of Judge Iwasawa, para. 64: “Qatar bears the burden of establishing such a disproportionate impact. On the other hand, the UAE has the burden of demonstrating that the measures were based exclusively on nationality”.
55.
Kazazi (1996), p. 225; Amerasinghe (2005), p. 91.
56.
United States – Measures Affecting Imports of Woven Wool Shirt and Blouses form India, Report of the Appellate Body (AB 1997-1), 25 April 1997, WT/DS33/AB/R. On this topic, see Mavroidis et al., op. cit., p. 127. See also Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products Second Recourse To Article 21.5 of the DSU by New Zealand and the United States, Report of the Appellate Body (AB-2002-6), 20 December 2002, WT/DS103/AB/RW2 WT/DS113/AB/RW2, ‘66. Thus, we have consistently held that, as a general matter, the burden of proof rests upon the complaining Member. That Member must make out a prima facie case by presenting sufficient evidence to raise a presumption in favour of its claim. If the complaining Member succeeds, the responding Member may then seek to rebut this presumption. Therefore, under the usual allocation of the burden of proof, a responding Member’s measure will be treated as WTO-consistent, until sufficient evidence is presented to prove the contrary. We will not readily find that the usual rules on burden of proof do not apply, as they reflect a “canon of evidence” accepted and applied in international proceedings’.
57.
Cook (2015), e-book, pp. 290–291.
58.
Grando (2009), p. 153.
59.
Sandifer (1975), p. 92: “[…] there is a great advantage in the position of the defendant since it is admitted in our law that the burden of proof is always upon the plaintiff”.
60.
Georges Pinson, French-Mexican Claim Commission, 19 April 1928, R.S.A. V, p. 372. See also, Niyungeko (2005), p. 39.
61.
AAPL v. Sri Lanka, para. 56: ‘Hence, with regard to proof of individual allegations advanced by the parties in the course of proceedings, the burden of proof rests upon the party alleging the fact’.
62.
Sandifer (1975), p. 96.
63.
Metal-Tech Ltd. v. Republic of Uzbekistan, ICSID Case No. ARB/10/3, Award 4 October 2013, para. 237.
64.
Conocophillips Petrozuata B.V. Conocophillips Hamaca B.V. Conocophillips Gulf of Paria B.V. And Conocophillips Company v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/30, Award, 8 March 2019 para. 271 ‘The burden of proof is based on two components. One is to determine the party required to submit to the Tribunal evidence relevant for the resolution of the dispute. The other is to identify the party bearing the burden of losing on a submission when the requested evidence has not been brought before this Tribunal. In many cases, but not in all cases, both components identify one and the same party’.
65.
(DS)2, S.A., Monsieur Peter de Sutter et Monsieur Kristof de Sutter c. République de Madagascar (Affaire CIRDI ARB/17/18), Sentence, 17 avril 2020 para. 398. ‘Il n’est pas non plus contesté que le fardeau de la preuve du dommage incombe aux Demandeurs, de telle sorte que les réclamations incertaines, spéculatives ou non étayées devront être rejetées’.
66.
Silver Ridge Power BV v. Italian Republic, ICSID Case No. ARB/15/37, Award, February 26, 2021 at para 518.What is decisive for the Tribunal, however, is that the Blusun v. Italy tribunal based its conclusion on the finding that the Puglia project “ran a significant risk of incurring legal or administrative difficulties, even if these could be (and in the event largely were) or administrative difficulties, even if these could be (and in the event largely were) overcome. Its success was by no means certain”. Differently put, the Blusun v. Italy tribunal found that in that case there were other plausible reasons for the difficulties regarding the attraction of adequate financing, and concluded that the claimants in that case had not succeeded in discharging the burden of proof falling upon them, i.e. that the measures adopted by Italy were the proximate cause of the failure of the project (see para. 516).
519. The present Tribunal also embraces this approach. […]
See also Mr. Joshua Dean Nelson v. The United Mexican States, ICSID Case No. UNCT/17/1 Final Award, 5 June 2020 para. 228. “[…] Therefore, Claimant has the burden to prove that, under Mexican law, Tele Fácil had the rights that Claimant considers were expropriated. The Parties do not dispute this approach”.
67.
Venezuela US, S.R.L. v. The Bolivarian Republic of Venezuela, PCA Case No. 2013-34, Partial Award, (Jurisdiction and Liability) 5 February 2021 para. 221. ‘Although there is a general rule that it is for the party which alleges a fact in support of its claims to prove the existence of that fact, as the International Court of Justice stated: it would be wrong to regard this rule, based on the maxim onus probandi actori, as an absolute one, to be applied in all circumstances. The determination of the burden of proof is in reality dependent on the subject-matter and the nature of each dispute’.
68.
Salini Costruttori S.P.A. and Italstrade S.P.A. v. The Hashemite Kingdom of Jordan, ICSID Case No. ARB/02/13, Award, 31 January 2006, para. 103.
69.
Ibid., para. 104 “In fact, the Tribunal has not been able to determine what decision, if any, had been taken by the two Prime Ministers. It is because the burden of proof is on the Claimants that their claim is to be rejected”.
70.
Rosell (2011), p. 115.
71.
Gaffney (2010), p. 524. It has been noted that ICSID tribunals use both “abuse of right” and “abuse of process” without apparent distinction. In ICSID jurisprudence, these expressions refer to a “frivolous” or “illegitimate” use of a legal action.
72.
Europe Cement Investment & Trade S.A.V. Republic of Turkey (ICSID Case No. ARB(AF)/07/2), Award, 13 August 2009, para. 185: “[…] an award to the Respondent of full costs will go some way towards compensating the Respondent for having to defend a claim that has no jurisdictional basis and discourage others from pursuing such unmeritorious claims”.
73.
On the Case Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Judgment of 3 February 2021, separate, partly concurring and partly dissenting opinion of Judge ad hoc Brower, para. 13.
It is interesting to observe that abuse of process has been invoked before the ICJ by France, making reference to ICSID jurisprudence in the case Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018, p. 292. The Court, however, decided not to open a dialogue on this issue with the ICSID system. On this point, see Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018, p. 292, Declaration of Judge Owada, para. 18.
On the separate but partially related issue of judicial propriety, see Appeal Relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar) Judgment of 14 July 2020, para. 51-60. Also on this issue, see Jadhav (India v. Pakistan), Judgment, I.C.J. Reports 2019, p. 418, para. 49.
74.
Soabi v. Senegal – Award 25 February 1988 – 2 ICSID Reports, 270; AAPL v. Sri Lanka – Award 27 June 1990, 4 ICSID Reports, 272; Tradex v. Albania, Award 29 April 1999, 14 ICSID Review – Foreign Investment Law Journal, 197, 219, 221 (1999): “In recent years, this principle has also been applied several times by arbitral tribunals in inter-State disputes (see for instance the Heathrow Airport User Charges case, 1992, 102 – International legal materials, p. 216). It has also been applied in commercial arbitration, in particular within ICSID. See also, Salini Costruttori S.P.A. And Italstrade S.P.A. vs. The Hashemite Kingdom of Jordan, ICSID Case No. ARB/02/13, para. 73.
75.
Irish Case, ECHR, Judge Zekia separate opinion, 58, in International Law Report, p. 300.
76.
Malek et al. (2010), p. 151.
77.
Pellet (2013), pp. 231–232: “With regard to the general principles of the […] in absentia proceedings […] the case law of the ICJ is accepted as having vested a rather high degree of authority in ICSID award”.
78.
Schreuer et al. (2009), p. 709, para. 3: “The original text of the Preliminary Draft was closely modeled on art. 53 of ICJ. The subsequent discussions and resulting changes were not so much directed at questioning the basic principles contained therein but in clarifying them”.
79.
Art. 42(3) ICSID Rules of Procedure for Arbitration Proceedings.
80.
Elkind (1984), p. 101.
81.
For example, International Chamber of Commerce (ICC) rules.
82.
Moss (2008), p. 1223.
83.
Sandifer (1975), p. 174: “[…] no recent instance of such a provision has been found”.
84.
Broches (1995), p. 187. See also, Petrochilos (2004), p. 218.
85.
Schreuer et al. (2009), p. 711.
86.
Schreuer et al. (2009), p. 710: “This principle is a necessary procedural corollary to the last sentence of art. 25(1), whereby consent once given may not be withdrawn unilaterally”.
87.
Schreuer et al. (2009), p. 712, para. 1.
88.
See note E to arbitration rule 42 of 1968, ICSID Reports, n. 1, Cambridge University Press, 1993, p. 104.
89.
Reed et al. (2011), p. 148: “Default proceedings, as in any international arbitration, place a substantial and difficult burden on both the tribunal and the sole participating party. To illustrate, in LETCO v. Liberia, in which Liberia failed to appear or present its case, the tribunal emphasized in the award that it submitted the claimant assertion to a careful scrutiny and had appointed an account firm to examine the claim for damages”. See also, Liberian Eastern Timber Corporation (LETCO) v. Republic of Liberia, ICSID Case No. ARB/83/2, Award, 31 March 1986, ICSID Reports Vol. II, 1994, pp. 343–380.
90.
Antoine Goetz and others v. Republic of Burundi, ICSID Case No. ARB/95/3, Award, 10 February 1999, ICSID Reports, vol. VI, 2004, p. 20.
91.
LETCO v. Liberia, ICSID Reports, vol. II, (1994), p. 356.
92.
Ibidem.
93.
LETCO v. Liberia, ICSID Reports, vol. II, 1994, p. 365: “According to the Concession Agreement, LETCO should not be obligated to demonstrate its compliance with the concession agreement in order to prove its right to recovery. Nonetheless, this tribunal has sought such proof both for reasons of prudence and to assist it in determining the award of possible damages”.
94.
On this topic, see also Moss (2008), p. 1231, n. 66.
95.
Moss (2008), p. 1233, n. 67.
96.
American Manufacturing & Trading, Inc. v. Republic of Zaire, ICSID Case No. ARB/93/1, Award, 21 February 1997, ICSID Reports, Vol. V, 2002, para. 7.18–7.19 “The tribunal has never denied the Republic of Zaire any opportunity to defend itself for the sake of good administration of justice. The tribunal has never forsaken the principle of the right to be heard. Even without the Republic of Zaire entering in appearance to present its case the tribunal fully takes into account the situation of Zaire. (7.19) The tribunal appointed Mr. Bernard Decaux of French nationality, [a] former civil servant of the World Bank, for the purpose of evaluating the damages suffered by societé SINZA”.
97.
Ibidem, para. 7.20 “The report was submitted to the parties […] The Republic of Zaire has not submitted its observations”.
98.
Ibidem.
99.
Moss (2008), p. 1225.
100.
Thirlway (2013), p. 1006: “[…] the principle of equality of the parties would suggest that the absence of a party should neither prejudice that party, nor confer upon it an advantage in relation to the active party”.
101.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 26, §31.
102.
Elkind (1984), p. 101.
103.
Elkind (1984), p. 102. “The drafting history of Article 53 and the law from which it is drawn indicate that it is erroneous to interpret that article as requiring a higher standard if the respondent fails to appear”.
104.
Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974.
105.
Ibid., para. 46.
106.
See, for example, Nuclear Tests (New Zealand v. France), Joint Dissenting Opinion of Judges Onyeama, Dillard, Jimgnez De Aréchaga, and Sir Humphrey Waldock, I.C.J. Reports 1974.
107.
Bogdanov v. Moldova, SCC Case, 93/2004. Available online at http://ita.law.uvic.ca/documents/Bogdanov–Moldova-22September2005.pdf.
108.
Bigge (2011), Available online at http://kluwerarbitrationblog.com/2011/12/29/iura-novit-curia-in-investment-treaty-arbitration-may-must, accessed on 27 September 2021.
109.
Sir Fitzmaurice (1980), p. 107.
110.
Thirlway (2013), p. 1003: “How to treat arguments presented in communication of this kind […] will they nevertheless affect the mind of judges […]?”
111.
Thirlway (1985), p. 124.
112.
Aegean Sea Continental Shelf, Oral Arguments on Jurisdiction, minutes of the public sittings, held at the Peace Palace, The Hague, from 9 to 17 October and on 19 December 1978, President Jiménez de Aréchaga presiding, p. 3119. Available online at http://www.icj-cij.org/docket/files/62/9491.pdf.
113.
Goetz v. Burundi, ICSID Case No. ARB/95/3, in ICSID reports, n.VI, 2006, p. 22.
114.
Military and Paramilitary Activities in Nicaragua and against this last (Nicaragua v. United States of America), Judgment, I.C.J. Reports 1986, para. 30.
115.
Ibidem.
116.
See, for example, Sir Fitzmaurice (1980).
117.
Aegean Sea Continental Shelf, Judgment, I.C.J. Reports 1978, p. 3.
118.
Zimmermann and Tams (2019), p. 1479, para. 31.
119.
Arbitral Award of 3 October 1899 (Guyana v. Venezuela), ICJ Judgment of 18 December 2020, Questions of jurisdiction and/or admissibility, para. 25.
120.
Ibid., para. 26.
121.
Ibid., para. 28.
122.
Rosenne (2006), p. 1365.
123.
Giovannini (2010), p. 501: “The duty of the Tribunal encompasses that one – proceed to an independent verification of the legal sources provided by the parties in the first place. In other words, the award can be based on independent legal sources”.
124.
Payment in Gold of Brazilian Federal Loans Contracted in France (France. v Brazil), 1929 P.C.I.J. (ser. A) No. 21, July 12, 1929, Merit, para. 79: “the court […] is a tribunal of international law, and […] in this capacity, is deemed to know what law is”. On this topic, see also Cheng (1953), p. 299.
125.
SARL Benvenuti & Bonfant v People’s Republic of the Congo, ICSID Case No. ARB/77/2, Award of 8 August 1980, ICSID Report Vol. I, 1993, para. 1.29.
126.
Ibidem, para. 1.32.
127.
Ibidem, para. 1.33: “The tribunal nevertheless considered that special circumstances […] had prevented the normal functioning of certain Congolese State agencies, and these were such to explain the government failure to comply with the successive time limits fixed by the Tribunal”.
128.
Thirlway (1985), p. 178.
129.
Thirlway (1985), p. 123, see also Devaney (2016), p. 118.
130.
Island of Palmas Case, 2 U.N. Rep. Int’l Arb. Awards 829 (1928).
131.
Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 3.
132.
Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 457.
133.
Sandifer (1975), p. 269.
134.
Sandifer (1975), p. 278.
135.
Niyungeko (2005), p. 86.
136.
Cheng (1953), p. 304 “[…] in this connection it may be mentioned that information obtained by a tribunal through an inspection of the places concerned in the proceedings (“descente sur le lieux”), a procedure which has sometimes been applied in International arbitral and judicial proceedings, present considerable affinity with judicial notice”.
137.
Amerasinghe (2005), p. 161.
138.
Schill (2010), p. 682.
139.
Schill (2010), p. 683.
140.
Egypt – Definitive Anti-Dumping Measures on Steel Rebar From Turkey, Report of the Panel, WT/DS211/R, 8 August 2002, ‘7.19 Turkey also argues that if we should decide, in terms of Article 17.5(ii), that the record that we can take into account should ordinarily be limited to the facts made available to the Investigating Authority during the course of the investigation, we nevertheless should adopt the legal principle of taking “judicial notice” of certain other facts.19 We are not aware of a principle of “judicial notice” at the WTO level. Certainly, we as Panelists have an awareness of matters pertaining to life, nature and society.’
141.
Nitschke (2019), p. 135. ‘A conciliation commission may, at any stage of the proceeding, visit the place connected with the dispute, provided that the parties may participate. Parties are in fact obliged to facilitate such site visits. In the conciliation cases registered to date, only one such site visit was conducted.
142.
On this topic, see, for example, Cheng (1953), p. 304.
143.
Gabčikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, ICJ Reports 1997, p. 14.
144.
Diversion of Water from the Meuse (Kingdom of Netherlands v. Kingdom of Belgium), C.P.J.I., 28 June 1937, Serie A/B, n. 70, p. 9.
145.
Thouvenin (1997), pp. 333–340.
146.
Southwest Africa, Order of 29 November 1965, I.C.J. Reports 1965, p. 9.
147.
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgement, 1992, p. 362, §22.
148.
Société Ouest-Africaine des Bétons Industriels (SOABI) contre La République du Sénégal, ICSID (Affaire ARB/82/1), Fond, 9 février, 1988, para. 1.35: “1.35 De passage à Dakar le 28 février 1986, le Président du Tribunal a des entretiens avec des personnes qui pourraient éventuellement servir en qualité d’experts que le Tribunal s’était réservé la possibilité de nommer pour l’assister dans sa tâche.”
149.
Schreuer et al. (2009), p. 671, para. 123.
150.
Compañía del Desarrollo de Santa Elena, S.A. v. The Republic of Costa Rica, ICSID Case No. ARB/96/1, award, 17 February 2000, para. 14, n. 2: “The matter of a possible site visit was considered a number of times by the Tribunal during the course of the arbitration proceedings. The Tribunal eventually concluded that a site visit would not be necessary, and no such visit took place”.
151.
Schill (2010), p. 682.
152.
ICSID Arbitration Rules, 34(3). See also, IBA Rules on the Taking of Evidence, art. 9(5).
153.
Paulsson (1996), p. 118.
154.
Reisman and Freedman (1982), pp. 737, 738.
155.
Schill (2010), p. 684.
156.
Landau (2009), Available online at https://www.claytonutz.com/ialecture/previous-lectures/2009/speech_2009. Accessed on the 15th October 2021: “What is their future policy space going to look like and this is a nascent emerging jurisprudence and so there is a responsibility upon these tribunals to produce awards which are not just decisions but provide guidance for future tribunals and so the model breaks down. It is not geared up for this. We need a way drawing all of this together of un-solidifying international arbitration and that is different from saying that it’s been judicialised. It’s not judicialised, it is unfortunately become a standard model and nobody has got the courage to depart from it”.
157.
Schill (2010), pp. 683–684: “The practical effect of this is that the factual record in investment treaty cases may remain incomplete […] This is problematic in any form of dispute settlement, but is especially so in investment treaty arbitration due to its public nature; it is not only the interest of two parties that are at stake, but potentially the interest of the whole population of the respondent state”.
158.
Amerasinghe (2005), p. 50: “A clear distinction is made between fact and law. A claim whether relating to jurisdiction or merits, generally relies on facts and rules or principles of law to be sustained. The burden of proof is applicable only to the facts underlying a claim”.
159.
Devaney (2016), p. 37. See also Kurkela (2003), p. 487, in Giovannini (2010), p. 496.
160.
Bigge (2011), p. 53: “Judge Lagergren in his 1979 decision in BP Exploration Co (Libya) Ldt. v. The Government of the Libyan Arab Republic, 53 International Law report 297, 1979, a case arising under a concession contract found that – at least in the context of a sovereign respondent’s default – an arbitrator is ‘both entitled and compelled to undertake an independent examination of the legal issues deemed relevant by it, and to engage in considerable legal research going beyond the confines of the materials relied by the Claimant’”.
161.
Niyungeko (2005), p. 86.
162.
Nottebohm Case (second phase), Judgment of April 6th, 1955: I.C.J. Reports 1955, p. 4. Plaidoiries Dans La Deuxième Phase de l’Affaire, Audiences Publiques tenues du 10 au 24 février, du 2 au 8 mars, et le 6 avril 1955, sous la présidence de M. Hackworth: “Les tentatives faites à cet égard par le Guatemala sont restées vaines et l’onus probandi lui incombe. II n’a pas même pu établir la coutume invoquée par lui sur la base de la littérature du droit des gens”.
163.
Fisheries case, Judgment of December 18th, I95I: I.C.J. Reports 1951, Individual opinion of Judge M. Alvarez, p. 116 (French original): “Tout État qui allègue un principe du droit international doit prouver son existence”.
164.
On this topic, see Case Concerning Rights of Nationals of the United States of America in Morocco, Judgment of August 2, 1952, I.C.J. Reports 1952; Asylum Case, I.C.J. Reports 1950, pp. 276–277.
165.
Niyungeko (2005), p. 85; Cheng (1953), p. 299; Thirlway (1981), pp. 58–60.
166.
Brasilian Loans, 1929, PCIJ Series A, Nos, 20/21 p. 124 “The Court […] is a tribunal of International law, and […] in this capacity is deemed to know what law is”.
167.
European Communities and Certain Member States - Measures Affecting Trade in Large Civil Aircraft - Recourse to article 21.5 of the DSU by the United States[…]- Report of the Appellate Body, 15/05/2018, WT/DS316/AB/RW ‘Consistent with the principle jura novit curia, it was not the responsibility of the United States to provide us with the “correct” legal interpretation of Article3.1(b)199, nor does the United States’ appeal of the Panel’s interpretation of Article3.1(b) fall outside the scope of appellate review merely because the United States has expressed an opinion as to a “preferred” interpretation. See also European Communities – Conditions for The Granting of Tariff Preferences to Developing Countries, AB-2004-1, Report of the Appellate Body, WT/DS246/AB/R, 7 April 2004, ‘105. We are therefore of the view that the European Communities must prove that the Drug Arrangements satisfy the conditions set out in the Enabling Clause. Consistent with the principle of jura novit curia, it is not the responsibility of the European Communities to provide us with the legal interpretation to be given to a particular provision in the Enabling Clause; instead, the burden of the European Communities is to adduce sufficient evidence to substantiate its assertion that the Drug Arrangements comply with the requirements of the Enabling Clause.’ See also ibidem n. 220 citing the ICJ. See also European Communities - EC Measures Concerning Meat and Meat Products (Hormones) - AB-1997-4 - Report of the Appellate Body WT/DS26/AB/R WT/DS48/AB/R, para. 156 ‘Panels are inhibited from addressing legal claims falling outside their terms of reference. However, nothing in the DSU limits the faculty of a panel freely to use arguments submitted by any of the parties – or to develop its own legal reasoning – to support its own findings and conclusions on the matter under its consideration. A panel might well be unable to carry out an objective assessment of the matter, as mandated by Article 11 of the DSU, if in its reasoning it had to restrict itself solely to arguments presented by the parties to the dispute’.
168.
Maritime International Nominees Establishment v. Guinea, ICSID Case No. ARB/84/4.
169.
Ibid., Decision of the ad hoc Committee, 22 December 1989, para. 6.40.
170.
Orascom Tmt Investments S.A.R.L. V. People’s Democratic Republic of Algeria, ICSID Case No. ARB/12/35 Decision on Annulment September 17, 2020, “193. The Respondent also states that the Tribunal did ensure that the adversarial principle was respected at every stage of the arbitration proceeding, including at the Hearing and in the Post-Hearing Briefs. Contrary to the Applicant’s affirmation, the Tribunal did not have to warn the Parties that it was inclined to uphold two preliminary objections and to grant the Claimant an additional opportunity to present its arguments on these objections. Moreover, the Respondent argues, in the many procedural incidents initiated by the Claimant in the arbitration proceeding, where the Claimant initially refused to comply with the Tribunal’s instructions and subsequently alleged a violation of the adversarial principle, the Tribunal allowed both Parties to formulate their arguments under the same conditions. As the Tribunal accepted the Claimant’s argument that “the Tribunal may apply the maxim jura no[v]it curia (or jura novit arbiter) and rely on any applicable legal authorities it deems relevant to its analysis”, the Applicant cannot now reasonably criticize the Tribunal for having granted the Respondent’s abuse of rights objection while referring, inter alia, to extracts from two scholarly publications which were not debated. Consequently, in upholding the Respondent’s objections, the Tribunal treated the Parties equally and respected the Claimant’s right to be heard”.
171.
Ibidem para. 226.
172.
The PV Investors v. The Kingdom of Spain, Final Award, PCA Case No. 2012-14, 28 February 2020, para.519 ‘When applying the law governing the substance of the dispute, the Tribunal is not bound by the arguments and sources invoked by the Parties. Under the maxim jura novit curia – or, better, jura novit arbiter – the Tribunal is required to apply the law of its own motion, provided it seeks the Parties’ views if it intends to base its decision on a legal theory that was not addressed and that the Parties could not reasonably anticipate.
173.
Moss (2008), p. 1242; Giovannini (2010), p. 504.
174.
Case Nottebohm (Liechtenstein v. Guatemala), merit, Judgement of 6 April 1955, I.C.J. Reports 1955, p. 4.
175.
Case Nottebohm, Dissenting opinion of Judge Klaestad, para. IV, pp. 30–31: “A solution upon these lines-severance of diplomatic protection from the question of nationality, and restriction of the right of protection-was never invoked by the Government of Guatemala, nor discussed by the Government of Liechtenstein. […] In such circumstances, it is difficult to discuss the merits of such a solution except on a theoretical basis; but 1 shall mention some facts which show how necessary it would have been, in the interest of a proper administration of justice, to afford to the Parties an opportunity to argue this point before it is decided”.
176.
Bigge (2011), p. 2.
177.
Bogdanov v. Moldova, SCC Case, 93/2004. Available online at http://ita.law.uvic.ca/documents/BogdanovMoldova-22September2005.pdf.
178.
Bigge (2011), p. 2.
179.
Giovannini (2010), p. 504.
180.
Giovannini (2010), p. 505.
181.
Meier and Mcgough (2014), p. 506.
See also Block (2020), p. 31, para. 17. “When applying the law, the arbitral tribunal is not only bound by the arguments and sources invoked by the Parties. The principle iura novit curia – or better, iura novit arbiter – allows the Tribunal to form its own opinion of the meaning of the law, provided that it does not surprise the parties with a legal theory that was not subject to debate and that the parties could not anticipate, pursuant the fundamental principle of due process”. See also Sourgens et al. (2018), p. 144, para. 7.32.
182.
Moss (2008), p. 1239.
183.
Klöckner Industrie-Anlagen GmbH and others v. United Republic of Cameroon and Société Camerounaise des Engrais, ICSID Case No ARB/81/2 (Klökner I), 3 May 1985.
184.
Klockner v. Republic of Cameroon, ICSID Case (ARB/81/2) ad hoc Annulment Committee decision, 3 May 1985, para. 91: “The real question is whether, by formulating its own theory and argument, the Tribunal goes beyond the ‘legal framework’ established by the Claimant and Respondent. This would for example be the case if an arbitral tribunal rendered its decision on the basis of tort while the pleas of the parties were based on contract. Within the dispute’s ‘legal framework’, arbitrators must be free to rely on arguments which strike them as the best ones, even if those arguments were not developed by the parties (although they could have been)”.
185.
Ibidem.
186.
Ibid., para. 91: “Any other solution would expose arbitrators to having to do the work of the parties’ counsel for them and would risk slowing down or even paralyzing the arbitral solution to disputes”.
187.
Compagñia des Aguas del Aconquija S.A. and Vivendi Universal v. Argentina, ICSID case No. Arb/97/3, Decision on the request for annulment, 10 August 2010, para. 84.
188.
Ibid., para. 84: “But even if true, this would by no means be unprecedented in judicial decision-making, either international or domestic […]”.
189.
Ibid., para. 84: “[…]and it has nothing to do with the ground for annulment contemplated by Article 52(1)(d) of the ICSID Convention”.
190.
Helnan International Hotels A/S v. Arab Republic of Egypt, ICSID Case No. Arb/05/19, Decision of the ad hoc committee, 14 June 2010, para. 23.
191.
Capital Financial Holdings Luxembourg SA c. Republique du Cameroun, Affaire CIRDI No. ARB/15/18, Sentence, 22 juin 2017, para 135 “[…] Le Tribunal arbitral considère que le principe jura novit curia lui permet de se référer aux sentences Marvin Feldman c. México, Nicaragua c. États-Unis d’Amérique et Argentine c. Uruguay, en dépit du fait que les Parties ne s’y sont pas référées, dans la mesure où ces sentences ne font qu’appuyer son raisonnement et ses conclusions”.
See also para. 262 “Le Tribunal arbitral relève À cet égard qu’une sentence a été́ rendue dans le même contexte le 12 décembre 2016, dans la seconde affaire Tenaris. Cette sentence, récente, n’a certes pas été́ citée ou commentée par les Parties, mais le Tribunal arbitral considère que le principe jura novit curia lui permet de s’y référer dans la mesure où cette sentence ne fait qu’appuyer son raisonnement et ses conclusions (cf. également ci-dessus para. 135). L’utilisation que fait le Tribunal de cette sentence s’inscrit dès lors dans le prolongement de la sentence Tenaris citée et commentée par les Parties [RL-36], et partant, dans le même cadre juridique”.
192.
Carlos Rios y Francisco Javier Rios c. República de Chile, (Caso CIADI No. ARB/17/16), Laudo, 11 de enero de 2021, para. 130. “Al dar efecto al derecho aplicable, sea en el contexto de jurisdicción, admisibilidad, o fondo, al Tribunal no le son vinculantes los argumentos presentados y las fuentes invocadas por las Partes. Conforme al principio de iura novit curia o, más precisamente, arbiter, el Tribunal debe aplicar el derecho como lo estime pertinente siempre que obtenga la opinión de las Partes al respecto en caso de que su decisión conste de una teoría jurídica no abordada por las Partes y que éstas no podrían haber anticipado razonablemente”.
193.
Case Concerning the Payment in Gold of Brazilian Federal Loans Issued in France, Judgment of 12 July 1929, PCIJ Series A, No. 21, p. 124.
194.
PCIJ, Case of the Free Zones of Upper Savoy and the District of Gex, France v. Switzerland, Judgment, 1932, A/B. 46, p. 138.
195.
Interpretation of Judgments No s. 7 and 8 Concerning the Case of the Factory at Chorzow, Judgment of 16 December 192 7, PCIJ Series A, No. 13, pp. 15–16.
196.
Case Concerning the Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden), Judgment of 28 November 1958, I. CJ. Reports 1958, p. 62.
197.
Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment of 25 July 1974, I.CJ. Reports 1974, p. 9, para. 17; Fisheries jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, I.CJ. Reports 1974, p. 181, para. 18.
198.
Patrick Mitchell v. Democratic Republic of the Congo, ICSID Case No Arb. 99/7 Decision on The Application for Annulment of The Award, 1 November 2006.
199.
Patrick Mitchell v. Democratic Republic of the Congo, ICSID Case No Arb. 99/7, Decision on the Application for Annulment of the Award, 1 November 2006: “A comparable approach would have been along the lines of the adage jura novit curia – on which the DRC leaned heavily during the Annulment Proceeding – but this could not truly be required of the Arbitral Tribunal, as it is not, strictly speaking, subject to any obligation to apply a rule of law that has not been adduced; this is but an option – and the parties should have been given the opportunity to be heard in this respect – for which reason it is not possible to draw any conclusions from the fact that the Arbitral Tribunal did not exercise it”.
200.
CME v. Czech Republic, T 8735 – 01, RH 2003:55, (2) Stockholm Arb. Rep (2003).
201.
CME Czech Republic B.V. v. The Czech Republic, SCC, UNCITRAL Final Award, 14 Mars 2003, para. 411.
202.
Enron Creditors Recovery Corp and Ponderosa Assets LP v. Argentine Republic, ICSID case No Arb/01/3, Decision on application for annulment, 30 July 2010.
203.
Mr. Patrick Mitchell v. Democratic Republic of the Congo, ICSID Case No. Arb/99/7, Decision on Annulment, 1 November 2006, para. 45.
204.
Enron Creditors Recovery Corp and Ponderosa Assets LP vs. Argentine Republic, ICSID case No Arb/01/3, Decision on application for annulment, 30 July 2010 §353 lett. (f) and “Decision” (1).
205.
RSM Production v. Grenada, ICSID case No ARB/05/14 (Annulment Proceeding), Decision on RSM Production Corporation’s Application for a Preliminary Ruling, 29 October 2009, para. 23.
206.
Ibidem.
207.
Zimmermann and Tams (2019), p. 1867, para. 67.
208.
Metal-Tech Ltd. v. Republic of Uzbekistan, ICSID Case No. ARB/10/3, Award 4 October 2013.
209.
Ibid. para. 287.
210.
(DS)2, S.A., Monsieur Peter de Sutter et Monsieur Kristof de Sutter c. République de Madagascar (Affaire CIRDI ARB/17/18), Sentence, 17 avril 2020, para. 132.
211.
Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports 1974, p. 9, para. 17; Fisheries jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment of 25 July 1974, ICJ Reports 1974, p. 181, para. 18.
212.
“For the purpose of deciding whether the claim is well founded in law, the principle jura novit curia signifies that the Court is not solely dependent on the argument of the parties before it with respect to the applicable law (cf. “Lotus”, P.C.I.J., Series A, No. 10, p. 31), so that the absence of one party has less impact. As the Court observed in the Fisheries Jurisdiction cases: [see supra]” (Military and Paramilitary Activities in and against Nicaragua, 1986, ICJ Rep 14, p. 25).
213.
English Arbitration Act, para. 34, in Giovannini (2010), p. 500.
214.
Societé VRV v. Pharmachin, Cour d’Appel de Paris, 25 November 1997, in Rev. Arb, 684 ff, 687 (1998).
215.
N.V. Belgische Scheepvaartmaatschappij – Compagnie Maritime Belge v. N.V. Distrigas, Swiss Supreme Court, 19 December 2001, ATF 4P.114/2001.
216.
Denis v. Mercelis and Crts., Bruxelles, in Journal des Tribunaux, 312 (1998), with note Bernard Hanotiau.
217.
Raesche-Kessler, Recht und Praxis des Schiedsverfahrens, Köln, 156 (1999).
218.
Southwest Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962: I.C.J. Report; 1962, p. 319, at para. 395.
219.
Kolb (2014), p. 238.
220.
Case Concerning the Administration of the Prince von Pless (Preliminary Objection) (1933) PCIJ Ser. A/B, No. 52, ‘Whereas the claim thus made raises a question regarding the Court’s jurisdiction, and as this question is connected with another, namely, whether, on the basis of Article 72, paragraph 3, of the Geneva Convention, a State, in its capacity as a Member of the Council, may claim that an indemnity be awarded to a national of the respondent State, who is a member of a minority; and as the latter question- which the Court feels called upon to raise proprio motu- concerns the merits, the Court cannot pass upon the question of jurisdiction until the case has been argued upon the merits’.
221.
United States - Anti-Dumping Act of 1916 - AB-2000-5 - AB-2000-6 - Report of the Appellate Body, WT/DS136/AB/R; WT/DS162/AB/R, 28/08/2000, para. 54. ‘We agree with the Panel that the interim review was not an appropriate stage in the Panel’s proceedings to raise objections to the Panel’s jurisdiction for the first time. An objection to jurisdiction should be raised as early as possible and panels must ensure that the requirements of due process are met. However, we also agree with the Panel’s consideration that “some issues of jurisdiction may be of such a nature that they have to be addressed by the Panel at any time.”30 We do not share the European Communities’ view that objections to the jurisdiction of a panel are appropriately regarded as simply “procedural objections”. The vesting of jurisdiction in a panel is a fundamental prerequisite for lawful panel proceedings. We, therefore, see no reason to accept the European Communities’ argument that we must reject the United States’ appeal because the United States did not raise its jurisdictional objection before the Panel in a timely manner. See also para 54 note 30’.
222.
United States - Section 110(5) of the US Copyright Act - Recourse to Arbitration under Article 25 of the DSU - Award of the Arbitrator WT/DS160/ARB25/1 09/11/2001, para. 2.1. See also footnote 24 of the same paragraph: ‘This is evidenced by Article 21 of the Optional Rules of the Permanent Court of Arbitration for arbitrations involving international organizations and States. See, Permanent Court of Arbitration: Optional Rules for Arbitration involving International Organizations and States, effective 1 July 1996, International Bureau of the Permanent Court of Arbitration, The Hague, The Netherlands.’
223.
Border and Transborder Armed Actions (Nicaragua v., Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 69 para. 16.
224.
Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, ICJ Reports 1998, p. 432.
225.
Continental Casualty Company v. Argentina, Decision on Jurisdiction, para. 60–61.
226.
Pan American Energy, LLC et al. v. The Argentina Republic, ICSID Case No. Arb/03/13, Decision on Preliminary Objections, July 27, 2006, para. 50.
227.
Phoenix Action, Ltd. v. The Czech Republic, ICSID Case No. Arb/06/5, Award, para. 64: “In sum, the Tribunal considers that as a general approach, it is correct that factual matters should provisionally be accepted at face value, since the proper time to prove or disprove such facts is during the merits phase. But when a particular circumstance constitutes a critical element for the establishment of the jurisdiction itself, such fact must be proven, and the Tribunal must take a decision thereon when ruling on its jurisdiction. In our case, this means that the Tribunal must ascertain that the prerequisites for its jurisdiction are fulfilled, and that the facts on which its jurisdiction can be based are proven”.
228.
Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 52, para. 13: recently reiterated by Judge Tomka in his separate opinion in the case related to the 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), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 558, Judge Tomka separate opinion, para. 8.
229.
Petrobart Limited v. The Kyrgyz Republic, SCC, Award, issued in Stockholm, Sweden, on 13 February 2003. para. 4.1.3.2.
230.
Oded Besserglik v. Republic of Mozambique, ICSID Case No. ARB(AF)/14/2, award, October 28, 2019.
231.
Laird and Gashaw (2020), pp. 1–8, at p. 3.
232.
Laird and Gashaw (2020), pp. 3–4 “Despite holding that, in raising the objection, the Respondent was in violation of article 45(2), the Tribunal found that it ‘may’ still determine whether the dispute was within its own competence by its own initiative under article 45 (3), even where a party fails to raise the objection itself.
Under the principle of Kompetenz - Kompetenz, the Tribunal recognized its ‘duty to write valid and enforceable awards [and i]t follows that it must proceed only with such matters as are within its competence”.
233.
Oded Besserglik V. Republic of Mozambique, ICSID Case No. ARB(AF)/14/2, award, October 28, 2019 para. 318. Claimant submits that the Tribunal has discretion in the matter of whether to consider its jurisdiction of its own accord under Article 45(3). This was suggested by the use of the word “may” in Article 45(3). According to Claimant, given the conduct of Respondent the Tribunal should not exercise this discretion in its favor. However, although the Tribunal is of the view that the considerable and inexcusable delay by the Respondent disentitles it to discretionary relief and from raising this objection under Article 45(2), once an objection of such a fundamental nature has been brought to its attention the Tribunal cannot decline to consider it sua sponte.
319. The use of the word “may” in Article 45(3) of the Arbitration Rules relates to the tribunal acting on its own initiative. It suggests that even where a party does not object to the competence of a tribunal, the tribunal may of its own initiative consider the question of its competence. It does not give a tribunal the discretion not to consider and examine its competence simply because an objection that raises an issue to the tribunal’s notice has been raised too late by a party.
234.
Raymond Charles Eyre And Montrose Developments (Private) Limited v. Democratic Socialist Republic Of Sri Lanka, ICSID Case No. ARB/16/25, Award, 5 March 2020, para.‘250. As a further preliminary point, the Tribunal confirms that the Claimants carry the burden of proof on their affirmative jurisdictional case. Where the burden shifts to the Respondent in connection with a particular Preliminary Jurisdictional Objection, the Tribunal will so indicate’.
235.
Michael Ballantine And Lisa Ballantine v. The Dominican Republic Final Award, PCA Case No. 2016-17, Permanent Court of Arbitration 3 September 2019 para. 507. Article 27(1) of the UNCITRAL Rules, applicable to this case, establishes that “[e]ach party shall have the burden of proving the facts relied on to support its claim or defence”. This provision embodies the principle onus probandi actori incumbit, which is widely recognized and applied by international tribunals.
508. The tribunal in AAPL v. Sri Lanka qualified this principle as an “established international law rule” […]
509. At the jurisdictional level and in the context of the DR-CAFTA, the tribunal in Pac Rim LLC v. El Salvador considered that “the Claimant has to prove that the Tribunal has jurisdiction” and “if there are positive objections to jurisdiction, the burden lies on the Party presenting those objections, in other words, here the Respondent”. The tribunal in Berkowitz v. Costa Rica also expressly referred to Article 27(1) of the UNCITRAL Rules and considered that “the accepted principle in international proceedings, at least at a level of generality, is that the burden rests in the first instance with the party advancing the proposition or adducing the evidence.”
510. Thus, the Tribunal concurs with the general approach followed by other DR-CAFTA tribunals and agrees with the tribunal’s opinion in Pac Rim LLC v. El Salvador that “it is not bound to accept the facts necessary to support or deny jurisdiction as alleged by the Claimant and the Respondent respectively; that the Claimant has the burden to prove facts necessary to establish jurisdiction (as it positively asserts); and that the Respondent has the burden to prove that its positive objections to jurisdiction are well-founded.”
Mesa Power Group LLC v. Government of Canada, Award PCA Case No. 2012-17, 24 March 2016, para. 234. ‘Both Parties have made submissions on the allocation of the burden of proof in respect of jurisdiction and merits. Mesa submits that the Respondent bears the burden of proof for the jurisdictional defences it raises.19 On its part, the Respondent submits that the Claimant bears the burden of establishing that this Tribunal has jurisdiction over the present dispute. It also points out that where there is any ambiguity about whether it has jurisdiction or not, a tribunal should decline to act.235. The Tribunal recalls that Article 24(1) of the UNCITRAL Rules contains the rules applicable with respect to which Party bears the burden of proof. It provides: “Each party shall have the burden of proving the facts relied on to support his claim or defence.”236. Thus, each Party must establish the facts on which it relies in support of its claims and defences. It is for the Claimant to establish the factual elements necessary to sustain the Tribunal’s jurisdiction over the challenged measures’.
Philip Morris Asia Limited v. The Commonwealth of Australia PCA Case No. 2012-12, Award on Jurisdiction and Admissibility, 17 December 2015, para. 495. ‘The Tribunal finds that there is no general disagreement between the Parties as to the principles governing burden of proof, although the application of these principles to certain preliminary objections requires further discussion. Specifically, it is for the Claimant to allege and prove facts establishing the conditions for jurisdiction under the Treaty; for the Respondent to allege and prove the facts on which its objections are based; and, to the extent that the Respondent has established a prima facie case, for the Claimant to rebut this evidence. Where relevant, the Tribunal will address the application of the burden of proof when discussing the various objections below’.
236.
Vasani et al. (2018), p. 313.
237.
Vasani et al. (2018), p. 316.
238.
Vasani et al. (2018), p. 319.
239.
Vasani et al. (2018), p. 330.
240.
Fontanelli (2018), p. 142.
241.
Jarret (2019), p. 8.
242.
Fontanelli (2018), p. 142.
243.
Wehland (2017), p. 246 ‘In sum jurisdiction and admissibility are concepts of considerable relevance in both proceedings under the ICSID Convention and proceedings under ICSID Additional Facility Rules. Whilst tribunals may be tempted to avoid deciding whether a particular objection relates to jurisdiction or admissibility with the argument that both types of objection prevent an examination of the merit of a case, the different scope of the review in relation to the concepts often makes it necessary to distinguish between them’.
244.
Reinisch (2018), p. 132.
245.
Georg Gavrilović and Gavrilović D.O.O. v. Republic of Croatia, ICSID Case No ARB/12/39, Award, 26 July 2018, para. 411. ‘The Tribunal agrees with the Respondent. Although the ICSID Convention includes no specific reference to admissibility, investor-State jurisprudence confirms that preliminary objections based on jurisdiction and on admissibility are permissible in the ICSID context. The facts and arguments underlying these two types of objections often overlap—and they certainly do here—but admissibility is nonetheless its own species of preliminary objection, separate and apart from jurisdiction. The Hochtief v Argentina tribunal clearly and succinctly described the distinction between jurisdiction and admissibility: “[j]urisdiction is an attribute of a tribunal and not of a claim, whereas admissibility is an attribute of a claim but not of a tribunal.” This Tribunal agrees. Questions of jurisdiction relate to the tribunal, e.g., whether the tribunal is empowered to resolve the dispute. Questions of admissibility relate to the claim itself, e.g., whether the claim is timely filed, whether it is ripe for adjudication, whether the procedural requirements have been met. Tribunals have asked, in the context of admissibility, questions such as: Did the claimant provide proper notification of its claims? Did the claimant fulfil domestic litigation requirements? Are the claims based on genuine, non-fraudulent documents? These types of questions—which relate to the claim, not the tribunal—are questions of admissibility. On this point, the Tribunal also adopts the reasoning of the Micula v. Romania tribunal, which similarly held that “an objection to jurisdiction goes to the ability of a tribunal to hear a case while an objection to admissibility aims at the claim itself and presupposes that the tribunal has jurisdiction.” In light of the jurisprudence cited above, with which the Tribunal agrees, the Tribunal finds that jurisdiction and admissibility are separate bases for preliminary objections. Thus, it is appropriate for the Tribunal to assess the Respondent’s admissibility objections separately from the Respondent’s objections to jurisdiction. The Tribunal turns to that admissibility analysis below.
246.
MrA J O. MrsT L v. The Slovak Republic Respondent, UNCITRAL Ad Hoc Arbitration, Final Award, 23 April 2012, para. 148.
247.
Fouret et al. (2019), The ICSID Convention, Regulations and Rules, a Practical Commentary, Cheltenham, Edward Elgar Publishing, para. 2.08. Admissibility objections may moreover generally be waived, whereas the jurisdictional requirements contained in article 25 (1) of the Convention are considered absolute and non-waivable.
248.
Sourgens (2012), p. 38.
249.
Sourgens (2012), pp. 896–897.
250.
Sourgens (2012), p. 910. “The current academic paradigm’s focus on formal jurisdictional rules risks seriously distorting access to justice in investor-state arbitration. This potential distortion can be corrected by adoption of the jurisdictional jurisprudence of the ICJ, and its predecessor, the Permanent Court of International Justice.”
251.
Sourgens (2012), p. 925. See also note 284 “An engagement in the substance of jurisdictional proof would either tilt the analysis in favor of one of the two competing premises of jurisdiction or involve the tribunal in contradictory reasoning by virtue of the inherent tension between both premises. Choosing one of the premises over the other is an impermissible excess of powers by over- or under-reaching the scope of the jurisdictional instrument. […] Attempting to independently balance the competing premises would likely cause the tribunal to employ self- contradictory reasoning. […]”.
252.
Oded Besserglik v. Republic of Mozambique, ICSID Case No. ARB(AF)/14/2, award, October 28, 2019.
253.
Article 41 ICSID Convention (2) “Any objection by a party to the dispute that that dispute is not within the jurisdiction of the Centre, or for other reasons is not within the competence of the Tribunal, shall be considered by the Tribunal which shall determine whether to deal with it as a preliminary question or to join it to the merits of the dispute”.
254.
Article 41 (2) of the ICSID Arbitration Rules amended in 2006 and came into effect on April 10, 2006 […] “The Tribunal may on its own initiative consider, at any stage of the proceeding, whether the dispute or any ancillary claim before it is within the jurisdiction of the Centre and within its own competence”. Cfr. non-binding explanatory notes at p. 107: […] “However, it may also be raised by the Tribunal on its own initiative (paragraph (2)), and indeed the Tribunal has special responsibility to do so if one of the parties has defaulted (see Rule 42(4))”.
255.
Fouret et al. (2019), p. 325 n. 238.
256.
Article 45 (3) ICSID Additional Facility Rules, created on September 27, 1978, amended on in early 2006 and came into effect on April 10, 2006. […] “The Tribunal may on its own initiative consider, at any stage of the proceeding, whether the dispute before it is within its competence”. See also Oded Besserglik v. Republic of Mozambique, ICSID Case No. ARB(AF)/14/2, award, October 28, 2019. “319. The use of the word “may” in Article 45(3) of the Arbitration Rules relates to the tribunal acting on its own initiative. It suggests that even where a party does not object to the competence of a tribunal, the tribunal may of its own initiative consider the question of its competence. It does not give a tribunal the discretion not to consider and examine its competence simply because an objection that raises an issue to the tribunal’s notice has been raised too late by a party”.
257.
1. Vattenfall AB; 2. Vattenfall GMBH; 3. Vattenfall Europe Nuclear Energy GMBH; 4. Kernkraftwerk Krümmel GMBH & CO. OHG; 5. Kernkraftwerk Brunsbüttel GMBH & CO. OHG v. Federal Republic of Germany, ICSID Case No. ARB/12/12, Decision on The Achmea Issue, 31 August 2018, para. 19.
258.
Michael Anthony Lee-Chin v. The Dominican Republic, ICSID Case No. UNCT/18/3, Partial Award on Jurisdiction, July 15, 2020 para. 118. “The majority of the Tribunal adopts Respondent’s assertion that the consent of the State (as well as that of any obligor) must be clear and unambiguous. It is essential that the tribunal called upon to resolve a dispute be persuaded that all the parties concerned (inter alia, a State in our case) have agreed to submit thereto. In the view of the Tribunal, the requirement that consent have such features should be understood in the sense that it must arise from the text, interpreted pursuant to the criteria accepted under international law, and not from presumptions or inferences based on expressions not contained therein. The proposition that a State’s consent is not to be presumed is as true as the proposition that a State may not invoke its condition as such in order to escape freely assumed obligations”.
259.
Klopschinski et al. (2021), para. 4.22 ‘The International Court of Justice (ICJ) has ruled that under international law “there is no burden of proof to be discharged in the matter of jurisdiction;”. […]
Para 4.24 Thus the jurisdictional question for investment tribunals will remain to consider whether the burden of proof lies with a claimant to demonstrate, on balance of probabilities, that its IP-based asset qualifies as investment, or whether, as the ICJ has ruled, there is no burden of proof to be discharged in the matter of jurisdiction; instead it is an equal contest of arms between the investor and the host State’.
260.
Vasani et al. (2018), p. 330.
261.
Amerasinghe (2009), p. 32.
262.
Fouret et al. (2019), p. 341, para. 4.222-3.
263.
Parra (2020), p. 65.
264.
Franck (2019).
265.
Vasani and Vasani (2018), p. 306.
266.
On the Case Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 7.
267.
Judges Tomka, Gaja, Crawford; Judge ad hoc Brower.
268.
Abi-Saab (1967), p. 35.
269.
Mavrommatis Palestine Concessions, series A, n° 2, 1924, p. 16.
270.
Zimmermann and Tams (2019), p. 1298.
271.
Article 79, para. 9 of the Rules of the Court.
272.
P.C.I.J., Series D, Addendum No. 2, Revision of the Rules of Court of June 26th, 1926, p. 89: “Moreover, for that very reason, it did not seem possible, except in particular cases, for instance under a general or special agreement between the Parties, to join the question of jurisdiction and the merits. Before an international court, which had to apply international law, questions of jurisdiction should be regarded as independent and preliminary. Whatever difficulties might result – they must bow before the fundamental principles of international law.”
273.
P.C.I.J., Series D, Elaboration of the Rules of Court of March 11th, 1936, Third Addendum to No. 2, 1936, 647.
274.
Shihata (1965), p. 87.
275.
Ambatielos case (jurisdiction), Judgment of July 1st, 1952: I.C.J. Reports 1952, p. 28, Individual Opinion of Judge Levi Carneiro, p. 48 “I consider that such a joinder should only be made when it is absolutely necessary”.
276.
See, regarding this aspect De Visscher (1966), p. 107.
277.
Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 4, at 44. “It will not do so except for good cause, seeing that the object of a preliminary objection is to avoid not merely a decision on, but even any discussion of the merits”.
278.
Ibid.
279.
Lang (1968), p. 6.
280.
CPJI, 4 February 1933, Series A/B, n. 52, p. 14 ‘Whereas, moreover, the Polish Government maintains that the acts mentioned in submission No. 1 of the Application relate only to a dispute between the Polish Treasury and the Prince von Pless as a tax-payer; whereas it states that it is in agreement with the German Government as regards the principle enunciated in submission No. 4 and denies that that principle has been violated or disregarded by it; whereas, on the other hand, the German Government appears to regard the acts mentioned in submission No. 1 as means used by the Polish Government of bringing unlawful pressure to bear upon the Prince von Pless; and as, accordingly, the question whether there is a difference of opinion, within the meaning of Article 72, paragraph 3, of the Geneva Convention, appears to be inextricably bound up with the facts adduced by the Applicant and can only be decided on the basis of a full knowledge of these facts, such as can only be obtained from the proceedings on the merits’.
281.
CPJI, Order of 23 May 1936 (Preliminary Objection), Series A/B66, p. 9 ‘Whereas the further proceedings on the merits, by enabling the Court to obtain a clear understanding of the relation in which the appeal under Article X of Agreement II stands to the request for the interpretation of Agreements II and III under Articles XVII and 22 of these Agreements, and of the meaning and scope to be attached to the submissions presented “alternatively or cumulatively as the Court may see fit”, will place the Court in a better position to adjudicate with a full knowledge of the facts upon the second objection of the Yugoslav Government; Whereas both objections should therefore be joined to the merits, so that the Court will give its decision upon them and, if need be, upon the merits in one and the same judgment’.
282.
Santulli (2002), p. 265. « On comprend désormais sans peine ces glissements: si une condition de recevabilité est incluse dans l’engagement juridictionnel comme limite à ce dont la juridiction est appelée à connaître, elle devient, en bon droit, une condition de compétence ».
283.
Monsieur Joseph Houben c.La République du Burundi, Affaire CIRDI ARB/13/7, sentence, 12 janvier 2016, para 140 « Or, la nature du différend soumis À l’arbitrage n’est pas affectée par les modalités de notification et de rédaction de l’aide-mémoire prévues À l’article 8.2 du TBI. Le consentement de l’État À l’arbitrage existe indépendamment de ces modalités, des lors que la nature du différend soumis À l’arbitrage est celle d’un différend relatif À un investissement. En d’autres termes, les modalités de notification et de rédaction de l’aide-mémoire ne relèvent pas de la compétence du Tribunal arbitral. En revanche, ces modalités relèvent de la question de savoir si le différend porté par l’investisseur À l’encontre de l’État d’accueil, ici le Burundi, est suffisamment cristallisé pour pouvoir être soumis À l’appréciation des arbitres. En ce sens, la condition relève de la recevabilité́ de la demande. »
284.
Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, at 849 para. 36. Under Article 38 of the Statute, the function of the Court is to decide in accordance with international law disputes that States submit to it. Under Article 36, paragraph 2, of the Statute, the Court has jurisdiction in all “legal disputes” that may arise between States parties to the Statute having made a declaration in accordance with that provision. The existence of a dispute between the Parties is thus a condition of the Court’s jurisdiction.
285.
Case concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment of 2 December 1963: I.C.J. Reports 1963, p. 15, Separate Opinion of Sir Gerald Fitzmaurice, p. 103.
286.
Lang (1968), p. 11 « On pourrait même à la limite prétendre qu’il n’est jamais utilisé à titre exclusif et que nous avons relevées dans deux affaires ne sont, pour reprendre la terminologie freudienne que l’expression “manifeste” de la préoccupation “latente” de la Cour de ne pas préjuger le fond ».
287.
Zimmermann and Tams (2019), p. 1299 ‘According to Art. 79, para 8 of the rules, the Court may, whenever necessary, request the parties to argue ‘all question of fact and law’ (including those touching upon certain aspects of the merit) in order to enable it to determine its jurisdiction or the admissibility at the preliminary stage of the proceeding. Rather than carrying the preliminary objections over into the merit phase, to dispose of the objections at the earliest stage of the proceeding’.
288.
Para 84.
289.
Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 7 para. 94.
290.
Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 7 para. 91.
291.
Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 7 para. 88 ‘In the first place, the United States cannot contest the fact that Bank Markazi was endowed with its own legal personality by Article 10, paragraph (c), of Iran’s 1960 Monetary and Banking Act, as amended — and indeed it does not do so. In the second place, the fact that Bank Markazi is wholly owned by the Iranian State, and that the State exercises a power of direction and close control over the bank’s activities — as pointed out by the United States and not contested by Iran — does not, in itself, exclude that entity from the category of “companies” within the meaning of the Treaty.
292.
Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 7.
293.
Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 7 dissenting opinion of judge ad hoc Brower.
294.
Public sitting held on Wednesday 10 October 2018, at 10 a.m., at the Peace Palace, President Yusuf presiding, in the case concerning Certain Iranian Assets (Islamic Republic of Iran v. United States of America) 60. Dans cette hypothèse, il resterait que les États-Unis prétendent aussi que le traité ne protège les « compagnies » que dans la mesure où elles exercent une activité́ privée, ou commerciale ou d’affaires. Ce n’est pas exact. Mais À supposer que, par extraordinaire, la Cour en vienne à̀ entériner cette interprétation, il lui faudrait alors déterminer quelles sont les activités de Bank Markazī auxquelles se rapportent les traitements dont l’Iran se plaint. L’Iran affirme qu’il s’agit sans aucun doute d’activités professionnelles. Les États-Unis semblent prétendre que tel n’est pas le cas. Il y a donc un différend de fond, nécessitant, pour être résolu, de plaider les faits, ce qui relève À l’évidence d’une autre phase de la procédure.
295.
Para.9.
296.
Zimmermann and Tams (2019), p. 1298.
297.
Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007, p. 832 para. 51.
298.
Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 7 para 96. ‘Under Article 79, paragraph 9, of the Rules of Court, when it is called upon to rule on a preliminary objection, the Court must give its decision “in the form of a judgment, by which it shall either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character”.
299.
Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 7, Joint separate opinion of Judges Tomka and Crawford, para. 9 ‘The decision of the Court in the present case to join the third preliminary objection of the United States to the merits marks a departure from the Court’s previous adherence to the regime set out in Article 79, paragraph 9.’ […]
The presumption is therefore in favour of a decision at the preliminary stage, rather than joinder to the merits. Article 79, paragraph 8, of the Rules of Court, the substance of which was added in 1972, reinforces this view, at least in relation to objections to the jurisdiction of the Court.
300.
Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 4.
301.
Abi-Saab (1967), p. 198 ‘Il est difficile d’éviter la conclusion que cet arrêt témoigne d’un changement d’orientation en la matière, plus favorable à l’extensions du champ d’application de la jonction. Cela ne peut aller sans affaiblir la base même et l’utilité réelle de la technique des exceptions préliminaires’.
302.
Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 4, at. 43. ‘The Permanent Court of International Justice drew attention to an important aspect of the matter when, as mentioned above, it said that “the Court may order the joinder of preliminary objections to the merits, whenever the interests of the good administration of justice require it”. But the safeguarding of the rights of respondent States is equally an essential part of “the good administration of justice”, and it is in the interests of the respondents that the Rules of Court should contain Article 62 permitting the filing of preliminary objections’.
303.
Sarvarian (2019), p. 74 ‘In April 2016, the International Court of Justice held a colloquium to commemorate the 70th anniversary of its establishment. One of the principal themes of this event was the potential adoption of improvements to the procedures and working practices of the Court. Responses to a Counsel Survey revealed a general interest in procedural reform at the Court, particularly with respect to the areas of evidence and procedural efficiency.’
304.
Sarvarian (2019), p. 76.
305.
Mcintyre (2019) https://www.ejiltalk.org/the-international-court-of-justice-releases-new-rules-of-court/, accessed on Friday 9 April 2021.
306.
Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 7, separate opinion of judge Brower paras 24, 32 Judge Brower, e.g., stated, ‘I concur entirely with the joint separate opinion of Judges Tomka and Crawford. The Court indeed “ha[d] the necessary information about Bank Markazi to decide the question at this stage”’. He also declared that he could not see that the Court ‘could have found otherwise than that Bank Markazi is not a “company” for purposes of the Treaty’.
307.
Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 7, separate opinion of judge Brower para. 24.
308.
Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 7, separate opinion of judge Brower para. 32.
309.
Red Eagle Exploration Limited v. Republic of Colombia (ICSID Case No. ARB/18/12), Decision on Bifurcation, 3 August 2020 para. 65. Second, the objection is not merits related and, if successful, would actually dispose of the entire case, but in view of the lack of evidence in support of the contentions of the Respondent, the Tribunal considers that bifurcation would not be justified.
66. In sum, on the basis of the materials available to it the Tribunal does not find merit in the objections raised by the Respondent.
Westmoreland Mining Holdings Llc v. Government of Canada, (ICSID Case No. UNCT/20/3), Procedural Order No. 3, Decision on Bifurcation, 20 October 2020 para. 45. ‘The decision in this Procedural Order 3 only relates to bifurcation. The Tribunal’s considerations and decisions regarding bifurcation do not prejudice any future decision the Tribunal will make with respect to the substance of the Respondent’s preliminary objections or the Disputing Parties’ submissions on the merits.
46. Article 21(4) of the 1976 UNCITRAL Rules provides as follows: “In general, the arbitral tribunal should rule on a plea concerning its jurisdiction as a preliminary question. However, the arbitral tribunal may proceed with the arbitration and rule on such a plea in their final award.” It follows that when a party raises an objection to jurisdiction, the presumption is that such objection will be determined as a preliminary issue. Having said that, this is a matter for the Tribunal’s discretion and we are not bound by that presumption; it is after all only a presumption. There will be circumstances where this presumption will not be followed, in particular where the matters raised by the objection are inextricably interlinked with the merits.’
310.
OOO Manolium-Processing v. The Republic of Belarus, Decision on Bifurcation, August 1, 2018 para. 8. For the above reasons, and considering the principles of procedural economy and cost efficiency, the Tribunal decides not to bifurcate the proceedings.
311.
Orazul International España Holdings S.L. v. Argentine Republic (ICSID Case No. Arb/19/25) Decision on The Respondent’s Request for Bifurcation, 7 January 2021 para. 30 ‘Accordingly, the Tribunal looks to the established case law on bifurcation in ICSID proceedings. At the outset, the Tribunal agrees with the tribunal in Churchill Mining v. Indonesia, which held that the “[b]ifurcation of preliminary issues is within the discretionary power of an ICSID tribunal.” It further agrees with the Parties that in resolving the question of whether to grant the Respondent’s request, the overarching factor to consider is one of procedural efficiency; in other words, whether bifurcating is more likely to increase or decrease the time and costs associated with the arbitration or could significantly contribute to clarifying and simplifying the dispute before the Tribunal.
Further, while there is no formal burden of proof, the Tribunal must nevertheless be persuaded that, on balance, bifurcation will facilitate that objective’.
312.
Glencore Finance (Bermuda) Limited v. The Plurinational State of Bolivia, PCA Case No. 2016-39, Procedural Order No. 2: Decision on Bifurcation, 31 January 2018, para. 38 -39.
313.
The Estate of Julio Miguel Orlandini-Agreda 2. Compañía Minera Orlandini LTDA.v. The Plurinational State of Bolivia, PCA Case No. 2018-39 1., Decision on The Respondent’s Application for Termination, Trifurcation and Security for Costs July 9, 2019 para. 127. The Tribunal further notes that the Parties do not disagree materially with respect to the applicable criteria for bifurcating jurisdiction from liability/merits. For example, the Respondent relies on the decision of the tribunal in Philip Morris v. Australia to identify three criteria for bifurcation:(i) whether the jurisdictional objections are prima facie serious and substantial; (ii) whether the jurisdictional objections are intertwined with the merits; and (iii) whether the jurisdictional objections, if granted, are capable of disposing of the whole case or an essential part of the case.273The Respondent also refers to the decision of the tribunal in Philip Morris v. Australia to point out that a tribunal’s decision on bifurcation must take into consideration the matter of efficiency, i.e., the savings of costs and time that may result from bifurcation. […]
Para. 136. The Tribunal further believes that its decision not to bifurcate jurisdiction from liability is not at variance with the goal of conducting efficient proceedings. When jurisdictional objections are raised, there is always the possibility that the tribunal declines jurisdiction. In a unitary proceeding, such a result would lead to inefficiency in that the parties will have also spent time and resources arguing the merits. This possibility has to be weighed against the inefficiency of the tribunal finding jurisdiction after a separate jurisdictional stage and only then proceeding to the merits. When seeking to determine which of the two alternatives is more likely to result in a more efficient proceeding, tribunals take into consideration, among other matters, the time, cost and fees associated with the presentation of the parties’ case on damages, the engagement of damages experts, etc., which typically constitutes part of the merits stage.
314.
Abi-Saab (1967), p. 198 ‘Il est difficile d’éviter la conclusion que cet arrêt témoigne d’un changement d’orientation en la matière, plus favorable à l’extensions du champ d’application de la jonction. Cela ne peut aller sans affaiblir la base même et l’utilité réelle de la technique des exceptions préliminaires’.
315.
De Brabandere (2014), p. 115.

References

Authors

Abi-Saab G (1967) Les Exceptions Préliminaires dans la Procédure de la Cour Internationale. Pedone, Paris
Google Scholar
Amerasinghe CF (2005) Evidence in international litigation. Martinus Nijhoff Publishers, Leiden
Google Scholar
Amerasinghe CF (2009) Jurisdiction of specific international tribunals. Martinus Nijhoff Publishers, Leiden
Book Google Scholar
Block G (2020) Arbitration and protection of investments in energy and infrastructure sectors. Éditions Bruylant, Bruxelles
Google Scholar
Broches A (1995) Selected Essays, World Bank, ICSID and other subjects of public and private international law. Martinus Nijhoff Publishers, Dordrecht
Google Scholar
Cheng B (1953) General principles of law as applied by International Courts and Tribunals. Stevens and Sons Limited, London
Google Scholar
Cook G (2015) A digest of WTO Jurisprudence on public international concepts and principles. Cambridge University Press, Cambridge, e-book
Google Scholar
Daly BW, Goriatcheva E, Meighen HA (2014) A guide to the PCA arbitration rules. Oxford University Press, New York
Google Scholar
De Brabandere E (2014) Investment treaty arbitration as public international law, procedural aspects and implications. Cambridge University Press, Cambridge
Google Scholar
De Visscher C (1966) Aspects récents du droit procédural de la Cour International de Justice, A. Pedone, Paris
Google Scholar
Devaney JG (2016) Fact-Finding before the international Court of Justice. Cambridge University Press, Cambridge
Book Google Scholar
Ðorðeska M (2020) General principles of law recognized by civilized nations (1922-2018). Brill-Nijhoff, Leiden
Book Google Scholar
Dubisson M (1964) La Cour International de Justice, préface de P. Reuter, L.G.D.J., Paris
Google Scholar
Elkind JB (1984) Non-Appearance before the International Court of Justice: functional and comparative analysis. Martinus Nijhoff Publishers, Dordrecht
Google Scholar
Fontanelli F (2018) Jurisdiction and admissibility in investment arbitration. Brill, Leiden, Boston
Book Google Scholar
Fouret J, Gerbay R, Alvarez GM (2019) The ICSID convention, regulations and rules, a practical commentary. Edward Elgar Publishing, Cheltenham
Book Google Scholar
Franck SD (2019) Arbitration costs, myths and realities in investment treaty arbitration. Oxford University Press, New York
Book Google Scholar
Gaillard E (2004) La Jurisprudence du CIRDI, Editions A. Pedone, Paris
Google Scholar
Garner BA (ed) (2009) Black’s law dictionary, 10th edn. Thomson Reuters, St. Paul
Google Scholar
Grando MT (2009) Evidence, proof and fact-finding in WTO dispute settlement. Oxford University Press, New York
Book Google Scholar
Hernandez GI (2014) The International Court of Justice and its Judicial function. Oxford University Press, New York
Book Google Scholar
Jarret M (2019) Contributory fault and investor misconduct in investment arbitration. Cambridge University Press, Cambridge
Book Google Scholar
Kazazi M (1996) Burden of proof and related issues. Kluwer International, De Hague
Google Scholar
Klopschinski S et al (2021) The protection of intellectual property rights under international investment law. Oxford University Press, New York
Google Scholar
Kolb R (2014) The Elgar companion to the International Court of Justice. Edward Elgar Publishing Limited, Cheltenham
Book Google Scholar
Lauterpacht H (1958) The development of international law by the international court. Steve & Sons, London
Google Scholar
Malek HM et al (2010) Phipson on evidence, 17th edn. Thomas Reuters (Legal) Limited, London
Google Scholar
Mavroidis PC et al (2006) The World Trade Organization. Oxford University Press, New York
Google Scholar
Niyungeko G (2005) La preuve devant les Juridictions Internationales. Éditions Bruylant, Bruxelles
Google Scholar
Parra A (2020) ICSID: an introduction to the convention and centre. Oxford University Press, New York
Google Scholar
Petrochilos G (2004) Procedural law in international arbitration. Oxford University Press, New York
Google Scholar
Reed L et al (2011) Guide to ICSID arbitration, Wolters Kluwer, Alphen aan den Rijn
Google Scholar
Rosenne S (2006) The law and practice of the international court, 1920–2005, vol III. Martinus Nijhoff Publisher, Leiden
Google Scholar
Sandifer DV (1975) Evidence before international tribunals. University Press of Virginia, Charlottesville
Google Scholar
Schill SW (2010) international investment law and comparative public law. Oxford University Press, New York
Google Scholar
Schreuer CH et al (2009) The ICSID convention, a commentary. Cambridge University Press, Cambridge
Book Google Scholar
Shihata IFI (1965) The power of the international court to determine its own jurisdiction. N Hijhoff
Google Scholar
Sourgens FG et al (2018) Evidence in international in international investment arbitration. Oxford University Press, Oxford
Google Scholar
Thirlway H (1985) Non-appearance before the international court of justice. Cambridge University Press, Cambridge
Google Scholar
Thirlway H (2013) The law and the procedure of the international court of justice, fifty years of jurisprudence, Vol. I. Oxford University Press, New York
Google Scholar
Zimmermann A, Tams CJ (2019) The Statute of the International Court of Justice, 3rd edn. Oxford University Press, New York
Google Scholar

Articles

Bigge DM (2011) Iura novit curia in Investment Treaty Arbitration: May? Must? Kluwer Arbitration Blog, 29 December, http://kluwerarbitrationblog.com/2011/12/29/iura-novit-curia-in-investment-treaty-arbitration-may-must
Fitzmaurice G (1980) The problem of the “non-appearing” defendant government. Br Yearb Int Law 51:89–122
Article Google Scholar
Gaffney JP (2010) Abuse of process in investment treaty arbitration. J World Investment Trade 11(4):515–538
Google Scholar
Giovannini T (2010) International arbitration and Jura Novit Curia. In: Fernández-Ballestreros MÁ, Arias D (eds) Liber Amicorum, Bernardo Cremades, Madrid, La Ley, pp 495–509
Google Scholar
Laird IA, Gashaw M (2020) Besserglik v Mozambique: a lesson in returning to the basics. ICSID Rev:1–8
Google Scholar
Landau T (2009) The day before Tomorrow: Future Developments in International Arbitration, Sydney, 21 October, http://www.claytonutz.com/ialecture/2009/transcript_2009.html
Lang J (1968) La jonction au fond des exceptions préliminaires devant la C.P.J.I et la C.I.J. Journal du Droit International
Google Scholar
Legum B (2018) An overview of procedure in an investment treaty arbitration. In: Yannaca-Small K (ed) Arbitration under international investment agreements. Oxford University Press, New York
Google Scholar
Mcintyre J (2019) The International Court of Justice Releases New Rules of Court, November 4. https://www.ejiltalk.org/the-international-court-of-justice-releases-new-rules-of-court/, accessed on Friday 9 April 2021
Meier A, Mcgough Y (2014) Do lawyers always have to have the last word? Iura Novit Curia and the right to be heard in international arbitration: an analysis in view of recent Swiss case law. ASA Bull 3/2014
Google Scholar
Moss GC (2008) Tribunal’s powers versus party autonomy. In: Schreuer C (ed) The Oxford handbook of international investment law. Oxford University Press, New York, pp 1206–1245
Google Scholar
Neff SC (2009) In search of clarity: Non Liquet and international law. In: Kaikobad KH, Bohlander M (eds) International law and power: perspectives on legal order and Justice Essay in Honour of Colin Warbrick. Martinus Nijhoff Publisher, Leiden, pp 63–85
Google Scholar
Nitschke F (2019) The ICSID conciliation rules in practice. In: Titi C, Gomez KF (eds) Mediation in international commercial and investment disputes. Oxford University Press, New York
Google Scholar
Paulsson J (1996) Overview of methods of presenting evidence in different legal systems. in gen. In: Jan Van Den Berg A (ed) International Council for Commercial Arbitration, Congress series n. 7, Planning Efficient Arbitration Proceedings, The Law Applicable, in International Arbitration. Kluwer Law International, pp 112–130
Google Scholar
Pellet A., (2013), The case law of the ICJ in investment arbitration. ICSID Rev. Oxford University Press 2:223–240
Google Scholar
Reinisch A (2018) Jurisdiction and admissibility in international investment law. In: Gattini A, Tanzi A, Fontanelli F (eds) General principles of law and international investment arbitration. Brill Nijhoff Leiden, Boston
Google Scholar
Reisman M, Freedman E (1982) The Plaintiff Dilemma: illegally obtained evidence and admissibility in international adjudication. Am J Int Law 76(4):737–753
Article Google Scholar
Rosell J (2011) Arbitration costs as relief and/or damages. J Int Arbitr 28(2):115–126, Kluwer, pp 115–121
Google Scholar
Santulli C (2002) Observations sur les exceptions de recevabilité dans l’affaire du Mandat d’arrêt du 11 avril 2000 (République démocratique du Congo c. Belgique). Annuaire français de droit International 48(1):257–280
Google Scholar
Sarvarian A (2019) Procedural economy at the International Court of Justice. Law Pract Int Courts Tribunals 18
Google Scholar
Schill S (2010) Crafting the international economic order: the public function of investment treaty arbitration and its significance for the role of the arbitrator. Leiden J Int Law 23:401–430
Article Google Scholar
Sourgens FG (2012) By equal contest of arms: jurisdictional proof in investor-state arbitrations. North Carolina J Int Law 38
Google Scholar
Tanzi A (2020) On judicial autonomy and the autonomy of the parties in international adjudication, with special regard to investment arbitration and ICSID annulment proceedings. Leiden J Int Law 33:57–75
Article Google Scholar
Thirlway HWA (1981) Evidence before International Court and Tribunals. In: Bernhardt R (ed) Encyclopedia of public international law. North Holland Publishing Company, Amsterdam, vol. 1 Settlement of Disputes, pp 58–60
Google Scholar
Thouvenin JM (1997) La descente de la Cour sur les lieux dans l'affaire relative au projet Gabčikovo – Nagymaros. Annuaire Française de droit International 43:333–340
Article Google Scholar
Vasani BS, Vasani SZ (2018) Bifurcation of investment disputes. In: Yannaca-Small K (ed) Arbitration under international investment agreements, 2nd edn. Oxford University Press, New York
Google Scholar
Vasani BS et al (2018) Burden and standard of proof at the jurisdictional stage. In: Yannaca-Small K (ed) Arbitration under international investment agreements, 2nd edn. Oxford University Press, New York
Google Scholar
Verburg C (2019) Modernising the energy charter treaty: an opportunity to enhance legal certainty in investor-state dispute settlement. J World Invest Trade 20:425–454 at. 440–441
Google Scholar
Wehland H (2017) Jurisdiction and admissibility in proceedings under the ICSID convention and the ICSID additional facility rules. In: Baltag C (ed) ICSID Convention after 50 years – unsettled issues. Wolters Kluwer, AH Alphen aan den Rijn, pp 227–247
Google Scholar

Download references

Author information

Authors and Affiliations

Paris, France
Giulio Alvaro Cortesi

Authors

Giulio Alvaro Cortesi
View author publications
You can also search for this author in PubMed Google Scholar

Rights and permissions

Reprints and permissions

Copyright information

About this chapter

Cite this chapter

Cortesi, G.A. (2022). The Burden of Proof and Its Exceptions. In: Proof and the Burden of Proof in International Investment Law. European Yearbook of International Economic Law(), vol 24. Springer, Cham. https://doi.org/10.1007/978-3-030-96343-9_2

Download citation

DOI: https://doi.org/10.1007/978-3-030-96343-9_2
Published: 29 April 2022
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-96342-2
Online ISBN: 978-3-030-96343-9
eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics

The Burden of Proof and Its Exceptions

Abstract

Access this chapter

Notes

References

Authors

Articles

Author information

Authors and Affiliations

Rights and permissions

Copyright information

About this chapter

Cite this chapter

Download citation

Share this chapter

Publish with us

Search

Navigation