Author: Abhinav Bhushan*
Published: April 2015
Description: International commercial arbitration often involves complex fact-finding issues. These issues are based on the parties’ arguments and their respective claims (which are supported by those arguments). Ordinarily, liability and quantum are two of the most contentious areas that arise during any commercial arbitration proceeding that require the presentation of evidence. Such evidence should be acceptable to the arbitral tribunal in order for it to rely on such evidence when deliberating and then determining the arbitral award.
While dealing with issues of fact-finding, the tribunal also confronts questions surrounding the burden and standard of proof. Arbitral tribunals use the burden and standard of proof to evaluate evidence. In international commercial arbitration, these issues must be decided in the context of party autonomy, the lex arbitri and arbitral discretion, in addition to mandatory norms of procedural fairness.
This article addresses these issues in four parts. In the first section the significance of arbitral discretion in determining the procedure to be adopted in the proceedings is discussed vis à vis questions of fairness and equity. In the second section, burden of proof is discussed in detail. In the third part, the impact of the personal subjectivity of the arbitrators and the parties, along with particular characteristics of legal systems, are addressed in the context of identifying the issues with regard to standard of proof. In the fourth part, it will be argued that the burden and standard of proof are not, in essence, issues of procedure but are instead substantive issues. Finally, this paper will conclude by offering some recommendations as to how to tackle the perplexing issues of burden and standard of proof.
*Abhinav Bhushan is a Deputy Counsel at the Secretariat of the ICC International Court of Arbitration (ICC) in Paris. The author would like to thank Mr. Jose Feris, the Deputy Secretary General of the ICC for his feedback and Ms. Riddhima Kedia, student at the Government Law College, Mumbai for her invaluable research assistance on this article. All views expressed in this article are those of the author alone and do not represent the views of the ICC International Court of Arbitration or that of the ICC Secretariat.