Standard and Burden of Proof in International Commercial Arbitration: Is There a Bright Line Rule? - ARIA - Vol. 25, Nos. 3-4, 2014

Author(s):

Abhinav Bhushan

Page Count:

12 pages

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Published:

April, 2015

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Originally from American Review of International Arbitration - ARIA

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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.1

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.