Principles of Evidence in Investor-State Arbitration, Burden, Standards, Presumptions, & Inferences
- 28 February 2019
- Academy Building
2311 GJ Leiden
- Prof. E. De Brabandere
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The thesis seeks to answer: 'Whether there are any principles of evidence as recognized and applied by investor-state tribunals or do the principles of evidence merely fall within a tribunal’s discretionary powers?'
The starting point for the analysis is one of the bedrock principles of international arbitration wherein an arbitral tribunal is not bound by technical rules of procedure or evidence. This is perhaps why arbitral rules do not discuss evidentiary principles in any detailed manner in comparison to the domestic codes on evidence in most countries. The only criteria provided for is that a tribunal has discretion to determine evidentiary matters. On the other hand, investor-state cases are frequently dismissed solely on evidentiary grounds. Further, critics point out that the lack of any guidance relating to evidentiary rules and principles can be problematic because it provides a tribunal with very broad discretion.
The research examines publically known investor-state cases, supplemented by views of leading commentators, to identify evidentiary principles dealing with burden of proof, standard of proof, presumptions and inferences. In this research, I conclude that investor-state tribunals have indeed recognized and applied evidentiary principles on burden of proof, standard of proof, presumptions and inferences. These principles do not always flow from the generally accepted view on arbitral discretion. Rather, these principles have been generally recognized under the rubric of general principles of law.
I conclude that the failure to meet the evidentiary principle can have consequences, although the precise consequence varies based on the principle.
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