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Vattenfall-kerncentrale Krümmel (Duitsland), Vattenfall / Flickr / CC / by-nc-nd 2.0

PhD defence: ‘Restrict the absolute discretion of investor-state tribunals’

In 2012, Swedish power company Vattenfall went to an investor-state tribunal in response to the decision of Germany to close three Vattenfall nuclear power plants on its territory. The tribunal now has to decide whether Germany’s decision is in accordance with the international Energy Charter Treaty. How do such investor-state tribunals arrive at their findings? PhD candidate Kabir Duggal will defend his doctoral thesis on 28 February.

'International arbitration is an amicable way to resolve disputes outside the traditional court route', Duggal explains. 'This has also become a preferred route for the settlement of disputes between international investors and foreign governments and is referred to in a new discipline called 'investor-state arbitration'.' One of the advantages of international arbitration is that strict rules on court procedures and evidentiary rules do not apply. 'The arbitral tribunal, often comprising of three members, has broad freedom to determine the procedure and evidentiary rules. But this is where the problems arise. Since investor-state arbitration involves a sovereign country, providing such broad discretion on evidentiary matters to three (unelected) arbitrators is problematic to say the least.'

The research question of this thesis revolves around one central but fundamental inquiry: do any principles of evidence exist as recognized and applied by investor-state tribunals or do the principles of evidence merely fall within a tribunal’s discretionary powers? The core methodology for the research therefore examines the decisions of investor-state tribunals in identifying the appropriate evidentiary principles. Another methodological technique is to identify such common principles of evidence applicable to most international courts and tribunals. This will help to provide a background and framework for evidentiary principles under which the findings of arbitral tribunals may be assessed. Third, even though there is no comprehensive literature that addresses evidentiary principles, the research also examines any existing literature on specific topics. This will facilitate a doctrinal underpinning for the research and can also help evaluate whether the observations of tribunals are consistent with the literature.

In his research, Duggal concludes 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 generally accepted views on arbitral discretion. Rather, these principles have been generally recognized under the rubric of 'general principles of law'.'  

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The researcher advocates restricting the absolute discretion of an arbitral tribunal. 'Right now, all evidentiary matters are presumed to fall within the discretion of an arbitral tribunal. But it is precisely this broad discretion that arbitral tribunals have that has become a constant source of criticisms about investor-state arbitration. The research can form a basis for restricting absolute discretion, steering it towards a more guided discretion for an arbitral tribunal. This would require arbitral tribunals to justify deviations from commonly recognized and regarded evidentiary principles, to the extent the research identifies such evidentiary principles.'

The research will fill multiple voids, according to Duggal. 'There is no monograph of any kind dealing with evidentiary principles in investor-state arbitration. But the research is also of real, practical significance. For both practitioners and for arbitral tribunals, no real scholarly examination of evidentiary principles had been conducted. Therefore, this research can help provide meaningful guidance to those involved in actual arbitration.'

Supervisor Prof.dr. E.C.P.D.C. De Brabandere on Kabir Duggal's research:

'Mr. Duggal embarked on this venture less than three years ago. I was immediately triggered by his PhD proposal and after having had a first Skype call, I was even more convinced of both the topic and his ability to bring this to an end. The difficult subject can only be analysed by someone, like Kabir, who both has an academic curiosity and experience in practice.

Kabir’s commitment to the PhD was from the start impressive. He already had much material to work with, but was very open to suggestions for further research and refinement of the argument.

Kabir has worked hard over the past years, combining this with your job as senior associate at Baker & McKenzie in New York and now Arnold & Porter in New York. He also combined this with lecturing at Columbia Law School amongst others.

Supervising his PhD has been an immense pleasure, especially academically, but also on a personal level. He not only has impressive knowledge of and interest in the field and beyond. But most of all, I will remember him as a generous, courteous and thoughtful person.'


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