The evidentiary process remains an integral part of an investor-state arbitration, although most arbitral rules remain silent on evidentiary principles. This is in sharp contrast to most domestic jurisdictions which have detailed rules of evidence. Indeed, one of the fundamental advantages of arbitration is often the lack of detailed rules of procedure, including evidence. Ignoring evidentiary principles in an actual arbitration, however, can have severe repercussions because cases are sometimes dismissed on purely evidentiary grounds. The current development provides an overview of the evidentiary principles relating to burden and standard of proof in investor-state arbitration as recognised and applied by investor-state tribunals.
“Exceptional claims demand exceptional evidence.” Christopher Hitchens
Arbitration: The International Journal of Arbitration, Mediation and Dispute Management