Part II Burden and Standard of Proof in International Investment Arbitration, 3 Shifting the Burden of Evidence

2018 ◽  
Author(s):  
Sourgens Frédéric Gilles ◽  
Duggal Kabir ◽  
Laird Ian A
Keyword(s):  
Burden Of Proof ◽  
International Investment ◽  
The Other ◽  
Standard Of Proof ◽  
Investment Arbitration ◽  
Burden Of Persuasion

This chapter explains the process of ‘shifting the burden of evidence’, otherwise known as the ‘shifting principle’. This is the proposition which occurs when the party who bears the initial burden puts forward evidence to support its initial claim. Here, the burden of evidence (or alternatively also termed as the ‘burden of production’, ‘burden of persuasion’, or ‘burden of proceeding’) shifts to the other party to rebut the evidence put forward. Shifting the burden of evidence is to be read in conjunction with the burden of proof principle discussed in the previous chapter. This is because it is only when the initial burden of the party making an allegation is met that the burden is shifted to the other party.

Part II Burden and Standard of Proof in International Investment Arbitration, 4 Introduction to the Standard of Proof in Investor–State Arbitration

2018 ◽  
Author(s):  
Sourgens Frédéric Gilles ◽  
Duggal Kabir ◽  
Laird Ian A
Keyword(s):  
Burden Of Proof ◽  
International Investment ◽  
Standard Of Proof ◽  
Investment Arbitration

This chapter introduces the standard of proof. The standard of proof provides the amount of evidence that must be provided by the party that has the burden (ie the party making the allegation). As such, it is a concept that is closely related with the burden of proof. The standard of proof helps explain how much evidence needs to be proffered by the party that has the burden of proving any particular issue in question. Since the distinction between the burden and standard of proof remains so contentious in investor-state arbitration, the chapter distinguishes the two by considering who must do the proving, and how much needs to be proved.

Part II Burden and Standard of Proof in International Investment Arbitration, 2 Burden of Proof in Investor-State Arbitration

2018 ◽  
Author(s):  
Sourgens Frédéric Gilles ◽  
Duggal Kabir ◽  
Laird Ian A
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Burden Of Proof ◽  
International Investment ◽  
Basic Rule ◽  
Standard Of Proof ◽  
International Agencies ◽  
Investment Arbitration ◽  
International Dispute ◽  
Near Unanimity

This chapter discusses the concept of the burden of proof in investor-state arbitration. The basic rule regarding the burden of proof in international law is that the party who makes an assertion must prove it. The rule has its origins in the traditions of Roman, common, and civil law countries, and is not new or unique to investment arbitration. In fact, this principle has been widely recognized by several international dispute settlement panels, as well as other international agencies. Not every set of arbitration rules explicitly includes this rule, however, although there is near unanimity by tribunals and commentators in its application.

scholarly journals Why Europe Should Reconsider its Anti-Arbitration Policy in Investment Disputes

2019 ◽  
Vol 2 (1) ◽  
pp. 6-30
Keyword(s):  
Dispute Resolution ◽  
Ad Hoc ◽  
International Investment ◽  
The Other ◽  
The European Union ◽  
Investment Arbitration ◽  
Court Of Justice ◽  
Wrong Direction ◽  
Current Change ◽  
The Eu

This paper addresses the current challenges to investor-state arbitration in Europe. Two parallel developments are outlined: the current change in the EU policy towards arbitration provisions in multilateral and bilateral investment treaties, and the consequences of the Achmea case decided by the Court of Justice of the European Union in March 2018. The author analyses the critical arguments behind the current European anti-arbitration stance and concludes that while some of them (but not all) may have some foundation, a sufficient number of reasons speak against the radical dismantling of the system of international investment arbitration. An analysis of the proposed alternatives shows that they fail to deliver viable solutions for diagnosed problems. In particular, the replacement of ad hoc tribunals by a multilateral investment court (MIC) seems to be a step in the wrong direction. The ISDS has played an important role in the global fostering of international investment by securing a basically fair system of dispute resolution in a very specific field. Its deficiencies are not beyond repair; on the other hand, the alternatives offered suffer from flaws that are the same or much more troubling. The author concludes that the consequences of the ‘change of tide’ in the approach to investor-state dispute resolution are likely to be detrimental to the very goals of those who advocate the abandoning of investment arbitration.

ECONOMIC CRIMES IN INTERNATIONAL INVESTMENT LAW

2018 ◽  
Vol 67 (3) ◽  
pp. 577-605 ◽  
Author(s):  
Yarik Kryvoi
Keyword(s):  
Best Practice ◽  
International Investment ◽  
International Investment Law ◽  
Applicable Law ◽  
Standard Of Proof ◽  
Investment Arbitration ◽  
Domestic Courts ◽  
New Generation ◽  
Economic Crimes ◽  
Domestic Law

AbstractThe protection of foreign investment by treaties often clashes with the State's sovereign right to investigate economic crimes committed by investors. This article examines the different approaches taken by tribunals to questions concerning admissibility and jurisdiction, applicable law, the standard of review, the burden and standard of proof and deference to actions taken by domestic courts and regulators related to economic crimes. It concludes that investors should not automatically be deprived of treaty protections and their access to investment arbitration blocked. The arbitration agreement, being autonomous from the main contract (or the relevant treaty), should, as a rule, remain valid even if the conduct of investors is tainted by economic crimes. The article calls on investment tribunals to reflect in their awards on the contributory fault of the parties when representatives of States and investors are both complicit in economic crimes. To achieve greater legal certainty and procedural efficiency, a new generation of investment treaties and the practice of investment tribunals should draw on not only applicable domestic law but also existing sources of international law concerning economic crimes or national best practice.

THE HUMAN RIGHTS DEFENCE IN INTERNATIONAL INVESTMENT ARBITRATION: EXPLORING THE LIMITS OF SYSTEMIC INTEGRATION

2019 ◽  
Vol 68 (3) ◽  
pp. 741-759 ◽  
Author(s):  
Johannes Hendrik Fahner ◽  
Matthew Happold
Keyword(s):  
Human Rights ◽  
International Investment ◽  
The Other ◽  
Straightforward Manner ◽  
Investment Arbitration ◽  
Human Rights Treaties ◽  
Investment Law ◽  
Investment Treaties ◽  
The Relationship

AbstractIn a variety of investment arbitration cases, respondent States have argued that measures impugned by investors were mandated by that State's human rights obligations. Tribunals have generally been reluctant to engage with such arguments and to interpret the relationship between investment law and human rights in a straightforward manner. This article discusses two other possibilities: harmonious interpretation and prioritization. Harmonious interpretation seeks to read provisions from investment treaties and human rights treaties together, whereas prioritization gives normative superiority to one provision over another. We conclude that harmonious interpretation is facilitated by the discretionary character of common treaty standards in both human rights and investment law, but that the final result is unlikely to be very different from prioritization, because even harmonious interpretation requires that one provision is read in the light of, and thereby subjugated to, the other.

Arbitration Under International Investment Agreements

2018 ◽  
Keyword(s):  
Dispute Settlement ◽  
Rapid Development ◽  
Burden Of Proof ◽  
International Investment ◽  
Third Party ◽  
Host Countries ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Key Topics ◽  
High Level

Investor-state arbitration is a form of dispute settlement that allows foreign investors the opportunity to seek compensation for damages or discriminatory practices, most of which arise out of breaches of treaty obligations by the governments of host countries. With a high level of public interest involved in these cases, the awards of these tribunals are subject to much scrutiny and debate. As a result, up-to-date knowledge of the key topics of investment arbitration is integral for those practicing in the field, especially given the rapid development of international investment law. This book describes the most important procedural and substantive aspects of investment arbitration in a practical and accessible manner. Covering all procedural stages of investor-state arbitration, the text provides a broad overview of the key topics including the role of precedent, counterclaims, third party funding, bi-trifurcation, burden of proof regarding jurisdiction, attribution, breach of treaty and contract claims, fair and equitable treatment, indirect expropriation, and culminates in the enforcement of investment awards. The text also describes the conflicts and challenges facing arbitrators from a practical perspective, providing a comprehensive insight into investor-state arbitration.

Part II Burden and Standard of Proof in International Investment Arbitration, 5 Different Standards of Proof in Investor-State Arbitration

2018 ◽  
Author(s):  
Sourgens Frédéric Gilles ◽  
Duggal Kabir ◽  
Laird Ian A
Keyword(s):  
Criminal Law ◽  
International Investment ◽  
Prima Facie ◽  
Reasonable Doubt ◽  
Standard Of Proof ◽  
Investment Arbitration ◽  
Standards Of Proof

This chapter highlights the three commonly identified standards of proof in investor-state arbitration. The first is the prima facie evidence standard, which involves an examination of the facts as alleged by the claimant to see whether such facts would amount to a breach of the treaty and otherwise fall within the jurisdiction of the tribunal. The second standard is the preponderance of evidence or the balance of probabilities. This standard requires an evaluation of all the evidence produced by both parties on a particular issue and this evaluation ultimately results in the tribunal determining which party’s evidence is more likely than not to be true. Finally, there is the heightened standard of proof. Here, the standard is higher than a balance of probabilities but lower than the criminal law standard of proof beyond reasonable doubt.

Evidence in International Investment Arbitration

2018 ◽  
Author(s):  
Sourgens Frédéric Gilles ◽  
Duggal Kabir ◽  
Laird Ian A
Keyword(s):  
International Investment ◽  
Comparative Approach ◽  
International Investment Law ◽  
Standard Of Proof ◽  
Investment Arbitration ◽  
Evidence Gathering ◽  
Investment Law ◽  
And Function ◽  
Law Of Evidence

This book is a guide for practitioners representing a party in investment arbitration disputes, and offers academics a perspective on the practical elements affecting the treatment of evidence in the area. The book uses a comparative approach to demonstrate the points of commonality and uniformity in the transnational foundations of the law of evidence as it affects international investment arbitration, providing theoretical and practical guidance on the treatment of evidence at all stages of such disputes. It examines the rules of evidence as recognized in the traditional rules of international law; the theory and function of international investment law dispute resolution against which the role of evidence must be assessed; practical management of the evidence-gathering process in investment arbitration disputes; and what to anticipate as challenges in the gathering and pleading of evidence in these disputes. The chapters cover a broad range of evidence-based topics, including: the burden and standard of proof, presumptions and inferences, witness and expert evidence, exclusionary rules including privileged and confidential documents, and annulment.

On judicial autonomy and the autonomy of the parties in international adjudication, with special regard to investment arbitration and ICSID annulment proceedings

2019 ◽  
Vol 33 (1) ◽  
pp. 57-75
Author(s):  
Attila M. Tanzi
Keyword(s):  
Case Law ◽  
International Investment ◽  
The Other ◽  
Commercial Arbitration ◽  
Investment Arbitration ◽  
Judicial Autonomy ◽  
International Adjudication ◽  
The One ◽  
The Relationship ◽  
Inter State

AbstractThe article addresses the relationship between judicial autonomy and the autonomy of the parties principles. The issue is not addressed so much through the lens of the procedural rules on the conduct of the proceedings, as through the prism of the general principles of adjudication which dictate the boundaries of judicial, or arbitral, decision-making. The focus will be on the combination between the principles ne, ultra and infra, petita and non liquet as they flow from the consensual nature of international adjudication and arbitration, on the one hand, and the principle jura novit curia which mirrors the autonomy of the judicial function, on the other. The analysis does not draw from national legal systems, nor from commercial arbitration. Due to the significantly different configuration of the principles at issue in different jurisdictions, it will focus on international litigation as an autonomous phenomenon. It will address firstly inter-state adjudication and then international investment arbitration. Special attention will be given to the ICSID system in consideration of its unique annulment mechanism. The article draws from researched case law an encouragement, if not simply the need, for international adjudicative bodies to undertake a proactive attitude in the conduct of the proceedings. More generally potentials emerge from the analysis, to the effect that not only inter-state adjudication may impact on investor-state arbitration, but also vice versa.

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