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M. Subhiksh Vasudev

LL.M Règlement des différends internationaux - MIDS

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Standard of proof

I. Definition


While burden of proof deals with the responsibility of a party to establish a proposition, it does not indicate the level (or standard) of proof that is required. Standard of proof deals with (a) the degree of conviction that the adjudicator must have to be satisfied that that the burden has been met,1 and (b) the sufficiency of evidence relied upon by a party to establish facts germane to its case.2

II. General practice


The practice in international arbitration is to assess the weight to be given to the evidence presented in favour of any particular proposition by reference to the nature of the proposition to be proved.3 Institutional arbitration rules often do not specify the standard of proof to be adopted4 and the tribunal is the judge of the probative value of any evidence.5 Generally, the standard of proof applied in international arbitration is that a claim must be proven on the ‘balance of probabilities’.6

III. Specific propositions


The standard of proof varies for certain legal propositions and “the more startling the proposition that a party seeks to prove, the more rigorous the arbitral tribunal will be in requiring that proposition to be fully established.7

A. Fraud, Corruption and Bad Faith


When it comes to proving bad faith or illegalities (such as corruption, forgery, fraud, etc.), there is no uniformity. Some tribunals have found that these allegations require a “high standard of proof8 and “clear and convincing” evidence.9 A recent award also highlighted that the standard is “higher than the balance of probabilities but less than the criminal standard of beyond reasonable doubt”.10 Other tribunals held that the standard remains the “balance of probabilities”,11 and even allowed the consideration of circumstantial evidence.12

B. Denial of Justice


While some tribunals found that to establish denial of justice, the standard of proof is “balance of probabilities”,13 others considered that it is rather “high” and there must be “clear evidence of an outrageous failure of the judicial system” or a demonstration of “systemic injustice” or that “the impugned decision was clearly improper and discreditable.14 The latter view is based on the following reasoning: one must prove lack of procedural fairness in local court proceedings resulting in such an egregiously wrong decision that no honest or competent court possibly have given.15

C. Valuation of damages


The standard of proof does not require a “scientifically precisevaluation – rather, the tribunal must be convinced that the proposed valuation will produce a sufficiently reliable result.16 As the exercise of valuation involves a degree of estimation, a claimant only needs to provide a basis upon which a tribunal can, with reasonable confidence, estimate the extent of the loss.17

D. Disqualification of Arbitrator


The standard of proof required under the ICSID Convention is that the challenging party must prove that the lack of independence is “manifest” or highly probable, not just possible.18 It is an “objective standard based on a reasonable evaluation of the evidence by a third party”.19 Instead of proving actual dependence or bias; it is sufficient to establish the appearance of dependence or bias.20 (See Arbitrator Disqualification and Arbitrator Impartiality and Independence).

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