PRIMA FACIE EXAMINATION OF JURISDICTION OF THE ARBITRAL TRIBUNAL IN INVESTMENT ARBITRATION – NOTION, INTERPRETATION AND THE ROLE IN ARBITRAL PRACTICE

Abstract

The main feature of the prima facie test that is widely used in investment arbitration is the fact that the arbitral tribunal decides whether a certain dispute is within its jurisdiction “on its face”, i. e. based on the facts of the dispute provided by the claimant while initiating an arbitration. The author analyses a considerable number of arbitral awards rendered in disputes between foreign investors and respondent states and explains the evolution in the conception of the prima facie test. Particular attention is dedicated to different aspects of the test – one in connection to the determination of the facts and the other in relation to the legal foundation of the claim. Although prima facie examination of jurisdiction was conceived in such a manner to prevent an arbitral tribunal from entering the merits of the dispute during the jurisdictional phase of the procedure, the latest arbitral practice shows clear tendency towards widening the function of the analysis.