Chapter 24 - The Evidentiary Stage - International Arbitration Law And Practice, Third Edition
Mauro Rubino-Sammartano is a Partner at LawFed-BRSA. Mr. Rubino-Sammartano is currently the President of the European Court of Arbitration and of the Mediation Centre of Europe, the Mediterranean and Middle East. He is also an associate member, as Italian advocate of Littleton Chambers in London. Mr. Rubino-Sammartano has acted and regularly acts as chairman, party-appointed, sole arbitrator and counsel in a large number of arbitral proceedings. His practice is largely based on international and national litigation and arbitration in the field of contracts, construction law, mergers and acquisitions, sales of goods, joint ventures and interlocutory injunctions.
Originally from International Arbitration Law and Practice, Third Edition
THE BURDEN OF PROOF
24.1. The Burden and Standard of Proof
As we previously discussed, as a rule legal arguments will rarely help a party that has been unable to first prove the facts on which its claim or defence is based.
Discharge of the burden of proof consequently plays an essential role in both arbitral and court proceedings, even if in City of West Branch1 the U.S. Supreme Court affirmed:
“Arbitral fact finding is generally not equivalent to judicial fact finding, – [T] he review of the arbitration proceeding is not as complete; the usual rules of evidence do not apply; and rights and procedures common to civil trial, such as discovery compulsory process, cross examination and testimony under oath, are often severely limited or unavailable.”
The general rule is that each party must prove his allegations.
The UNCITRAL Arbitration Rules state:2
“Each party shall have the burden of proving the facts relied on to support his claim or defence.”
CHAPTER 24: THE EVIDENTIARY STAGE
The Burden of Proof
24.1 The Burden and Standard of Proof
Admissibility of Evidence
24.2 Admissibility of Evidence – Substantive or Procedural Issue
Need for a Leave
24.3 Leave to Call Oral Evidence
The Taking of Evidence
24.4 The Taking of Evidence
24.5 Pre-trial Evidence (Depositions and Interrogatories)
24.6 Publicity of Hearings
24.7 Recording of Hearings
Documentary Evidence
24.8 Discovery of Documentary Evidence
24.9 E-Evidence
24.10 Assistance by Foreign and International Tribunals in Obtaining Evidence
Oral Evidence
24.11 Evidence by Witnesses
24.12 Witness Statements/Affidavits
24.13 Consequences of False Testimony
24.14 Tandem Witness Examination
24.15 Evidence by the Parties
24.16 Applications to the Courts for Assistance in the Taking of Evidence
24.17 Rules of Conduct
24.18 Sanctions
24.19 Witness Coaching
Experts
24.20 Experts
24.21 The Arbitrator’s Duty to Assist the Process
Presumptions
24.22 Presumptions
24.23 Personal Knowledge of the Arbitrator and Judicial Notice
Site Visits
24.24 Site Visits
Time Bars and Non-Mandatory Terms
24.25 Time Bars and Non-Mandatory Terms
Demonstrative Evidence
24.26 Demonstrative Evidence
Sanctions
24.27 Adverse Inferences
24.28 Other Sanctions
Fresh Evidence
24.29 Fresh Evidence
Closing of the Evidentiary Stage
24.30 Closing of the Evidentiary Stage
No Strict Rules of Evidence
24.31 Arbitrators Dispensed with Compliance with Strict Rules of Evidence
Need for Standard Rules of Evidence
24.32 Need for International Standard Rules of Evidence