What is the relationship between the tribunal’s discretion and the applicable laws on
evidence?
Arbitrators tend to focus on establishing facts necessary for determining issues between
parties, and are reluctant to be limited by technical rules of evidence that might prevent them
from achieving this goal. Saleh1 believes that the amalgam of law and the tribunal’s
discretion may not please purists. Also, there is no longer assurance that a specific evidential
rule will be consistently observed as the notion of admissibility loses in legal certainty what it
gains in speed. Thus it is manifestly clear that the admissibility of evidence seems to have
been freed from the rule of law to avoid over-elaborate, parochial and legalistic prescriptions
of domestic law. Furthermore, the tribunal does not need additional hindrance by technical
objections of inadmissibility towards his vision, due to the obscuring of so many factors
intervening between his perception of facts (through his own sensory organs, acquired beliefs
via education and environment, his own legal training, difference in language, ‘smoke screen’
of at least one of the parties) and the facts themselves. Yet the blend of law and the tribunal’s
discretion does not present a major disadvantage on speed advantages, as it offers a more
direct and comprehensive access to the facts2. In addition, the tribunal should not disregard
basic legal rules to attain a clear unobscured perception anyway.
What is the burden and standard of proof?
Burden of proof
The burden of proof denotes the party who has the obligation to prove the assertion of
allegations or facts, but upon which party is the question. It is embodied in various rules 3. For
example, UNCITRAL Rules provides that ‘Each party shall have the burden of proving the
facts relied on to support his claim/defence’4. It can be discharged by witness or expert
evidence, document production, or both. In fact, if a fact is so obvious, judicial notice can be
taken without proof. For example, one such proposition might be that the earth is a sphere,
although members of the flat earth society would not agree5. The tribunal’s instinct will be to
‘establish a more rigorous testing of propositions that are inherently surprising’6. For
instance, a tribunal is not likely to accept an average businessman, performing his duties in a
normal way, as guilty of fraud, unless presented with conclusive proof. In civil law states, the
burden of proof is deemed a substantive issue. But in common law states, it is deemed a
procedural issue7.
1
Saleh, 'Reflections on Admissibility of Evidence- Interrelation Between Domestic Law and International
Arbitration', 15 Arb Int 141-160 (1999), pages 159-160.
2
Arthur Marriott QC, ‘Evidence in International Arbitration’ in (1989) 5 Arbitration International 3.
3
UNCITRAL Rules Article 25(6); ICC Rules Article 20; NAI Rules Article 27; Stockholm Institute Article 26;
WIPO Article 48; Zurich Rules Article 44.
4
UNCITRAL Rules, Article 27(1)
5
Redfern and Hunter, International Arbitration Chapter 6, page 12.
6
Hunter, 'Modern Trends in the Presentation of Evidence in International Commercial Arbitration', 3 Am. Rev.
Int'l Arb. 204 (1992), page 8.
7
Patocchi and Meakin, “Procedure and the Taking of Evidence in International Commercial Arbitration – The
Interaction of Civil Law and Common Law Procedures”, 7 RDAI/IBLJ 884 (1996) 889. Ferrari, “Burden of
Proof Under the United Nations Convention on Contracts for International Sale of Goods (CISG)”, 5
RDAI/IBLJ 665 (2000).
