Innovations in Mass Claims Dispute Resolution: Using New Standards of Proof - Dispute Resolution Journal - Vol. 58, No. 3
The author is an attorney at De Brauw Blackstone Westbroek, in The Hague, specializing in arbitration and litigation. She previously served in different capacities on the Claims Resolution Tribunal for Dormant Account, Zürich, and the U.S./U.K. Heathrow User Charges Tribunal.
Originally from Dispute Resolution Journal
This article was presented at the international arbitration conference on interim relief and mass claims, sponsored by the Permanent Court of Arbitration and the International Centre for Dispute Resolution, in Brussels on May 28, 2003. An expanded version of this article will be included in a forthcoming volume on mass-claims practice published by the Permanent Court of Arbitration.
Mass-claims tribunals are characterized by large numbers of claims, large numbers of claimants, and usually, special factual circumstances triggering the claims that led to the institution of the particular mass claims tribunals. An examination of the recent practices of some of these tribunals reveals that the role of evidence in the proceedings before them has been redefined.
However, stating a rule of what has been the general practice of mass claims tribunals is not so easy to do. The excellent book Fact-Finding Before International Tribunals1 contains numerous papers on this subject, including fact finding by the International Court of Justice and the Iran-U.S. Claims Tribunal, and by international human rights bodies. Generally speaking, in “normal” non-mass claims proceedings, one can say that the standard is that evidence is weighed, and a determination is made of the preponderance of the evidence. Mass claim tribunals generally apply less stringent standards of proof. Moreover, the procedure of presenting evidence is often simplified, which may permit the use of newer techniques that replace or modify the traditional forms of submitting evidence, such as electronic submissions.
This article examines how six mass claims tribunals, some of which still exist, have dealt with the standard of proof. This examination reveals that a number of tribunals say that they apply a “plausibility” standard or simply a “more relaxed” standard of proof than would normally be required in court or arbitration. However, it is crucial to emphasize that a detailed comparison of the various tribunals is not helpful because of the different circumstances in which each arose. That is not to say that a comparison is utterly pointless. But in making any general comparison, the characteristics and circumstances that shaped each tribunal must be taken into account.