The discretionary decisions can affect the factual conclusions and hence result in unfairness to one party in a particular case.Understanding that tribunals are always bound to conduct the procedure fairly and within ...The discretionary decisions can affect the factual conclusions and hence result in unfairness to one party in a particular case.Understanding that tribunals are always bound to conduct the procedure fairly and within the limits of certain public policy,a careful examination of these principles to ensure the tribunals staying in course should be warranted.The development of evidentiary rules in investor-state arbitration is bifurcated.On the one hand,significant development has been made with respect to the rules of the taking of evidence as a result of the practice of international tribunals and by various codification efforts.On the other hand,lack of systematic and concrete rules binding tribunals on the exercises of determination of facts,allocating burden of proof and weighing of probative value of evidence makes the result of fact-finding unpredictable,inconsistent and sometimes even arbitrary.International tribunals have considerable discretion in dealing with presented evidence by applying the evidentiary rules they consider fit.This article reviews the principles relating to burden and standard of proof as reflected in international investor-state arbitration.Significant divergences can be discerned in practice.However,this author does not believe that introducing specific and binding evidentiary rules is a solution,considering the fundamental differences between arbitration and litigation.What the author advocates is the development of some guideline rules to ensure greater certainty,while preserving the flexibility of the arbitral process.The balance aims to achieve a level of"guided flexibility"to reduce uncertainties in factual decisions and to endow the less-experienced tribunals with some guidance.展开更多
文摘The discretionary decisions can affect the factual conclusions and hence result in unfairness to one party in a particular case.Understanding that tribunals are always bound to conduct the procedure fairly and within the limits of certain public policy,a careful examination of these principles to ensure the tribunals staying in course should be warranted.The development of evidentiary rules in investor-state arbitration is bifurcated.On the one hand,significant development has been made with respect to the rules of the taking of evidence as a result of the practice of international tribunals and by various codification efforts.On the other hand,lack of systematic and concrete rules binding tribunals on the exercises of determination of facts,allocating burden of proof and weighing of probative value of evidence makes the result of fact-finding unpredictable,inconsistent and sometimes even arbitrary.International tribunals have considerable discretion in dealing with presented evidence by applying the evidentiary rules they consider fit.This article reviews the principles relating to burden and standard of proof as reflected in international investor-state arbitration.Significant divergences can be discerned in practice.However,this author does not believe that introducing specific and binding evidentiary rules is a solution,considering the fundamental differences between arbitration and litigation.What the author advocates is the development of some guideline rules to ensure greater certainty,while preserving the flexibility of the arbitral process.The balance aims to achieve a level of"guided flexibility"to reduce uncertainties in factual decisions and to endow the less-experienced tribunals with some guidance.
