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.

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, 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.

scholarly journals Application of the Balance of Probabilities Standard of Proof in Judicial Practice

2020 ◽  
pp. 227-233
Author(s):  
Illia But
Keyword(s):  
Common Law ◽  
Convincing Evidence ◽  
Reasonable Doubt ◽  
Standard Of Proof ◽  
National Courts ◽  
Judicial Practice ◽  
European Court ◽  
The Usa ◽  
Standards Of Proof ◽  
The Uk

The paper describes key standards of proof used in common law countries: balance of probabilities and beyond reasonable doubt,applied in judicial practice in the UK, and the criminal standard beyond reasonable doubt, civil standard preponderance of evidence,and interim standard clear and convincing evidence, applied in judicial practice in the USA. The author identifies main conditions for application of the balance of probabilities standard in foreign judicial practice: 1) thisstandard is not merely a surmise based on guesses or suspicions; such surmise shall be based on certain evidence, which in total is notenough to establish presence or absence of a certain fact unequivocally; 2) the graver is an allegation, the less probable is the occurrenceof the fact, and hence it must be proved with harder evidence; 3) the less probable is an event, the more evidence there must be to provethat it might have truly occurred; 4) there is no direct connection between graveness of an allegation (consequences) and probability ofan event: some grave harmful conduct may be fairly common or, on the contrary, may happen rather infrequently.The paper identifies step-by-step implementation of standards of proof in practice of the European Court of Human Rights(ECHR): at the first stage one can find references to standards of proof only in cases against the United Kingdom; at the second stagethere are judgments made on complaints against other countries, though in such judgments the ECHR does not assess standards ofproof, but merely reflects that those have been applied by national courts. At the third (contemporary) stage the ECHR only distingui -shes between application of standards of proof in criminal and quasi-criminal cases.The author concludes on the basis of study of empirical data that the balance of probabilities standard of proof is already appliedin the national judicial practice, however principles of its application in the judicial practice have not been developed yet. It is notedthat though the doctrine of the standards of proof was developed in the common law countries, application thereof does not contradictthe concept of judicial activism: an idea, according to which a decision must be made in favour of the party, whose statements are reliablenot per se, but in comparison with statements of the adverse party, enables courts to make judgments in cases when positions ofboth sides are impeccable, and evidence for unequivocal conclusions is not enough.

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 Kejanggalan Beberapa Putusan Korupsi Pengadaan dan Kaitannya dengan Konstitusi

2016 ◽  
Vol 13 (1) ◽  
pp. 213
Author(s):  
Richo Andi Wibowo
Keyword(s):  
Criminal Law ◽  
Public Procurement ◽  
Reasonable Doubt ◽  
Constitutional Court ◽  
Court Decisions ◽  
Private Law ◽  
Financial Loss ◽  
Standard Of Proof ◽  
Lower Standard

This paper aims at highlighting some odd court decisions on corruption typed “state financial loss” in public procurement sector. It is odd because of the following reasons: (i) the nature of the case is more about administrative or private law instead of criminal law; (ii) some consider that it will be unjust to sentence guilty the accused; (iii) the cases ensnare persons who are perceived as reformist and clean. The first point will be the focus of elaboration. It will be argued that the encroachment of criminal law towards the area of administrative and private laws are caused by the lower standard of proof for the corruption typed “state financial loss”. Currently, the applied standard is “more likely than not” instead of “beyond reasonable doubt”. The situation which some people are jailed while their faults are more about administrative and private is a justice issue. As the upright of justice is the mandate of the constitution, therefore, articles that create this injustice (Article 2 section (1) and Article 3 of the Eradication Corruption Act) should be re-reviewed by the Constitutional Court. Although the court has previously reviewed the Articles and, therefore, this should be seen as a final and binding; this paper will give some arguments which explain the needs for the court to re-settle this matter.

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 Difference between Blackstone-Like Error Ratios and Probabilistic Standards of Proof

1996 ◽  
Vol 21 (01) ◽  
pp. 95-132 ◽  
Author(s):  
Michael L. DeKay
Keyword(s):  
Reasonable Doubt ◽  
Decision Threshold ◽  
Simple Manner ◽  
Standard Of Proof ◽  
Error Ratio ◽  
Standards Of Proof ◽  
The Difference ◽  
Judicial Errors

Statements regarding the ratio of erroneous acquittals to erroneous convictions are often thought to have clear implications for standards of proof. For example, Blackstone's comment that “it is better that ten guilty persons escape, than that one innocent suffer’ is believed by many to imply a precise numerical value for proof beyond a reasonable doubt. Specifically, jurors should vote to convict only if they are at least 91 % certain of the defendant's guilt. Unfortunately, the belief that this decision threshold will lead to the desired ratio of judicial errors is simply incorrect. Depending on (a) the accuracy with which juries discriminate between truly innocent and truly guilty defendants and (b) the proportion of defendants who are truly guilty, this probabilistic standard of proof may lead to any ratio of judicial errors, including those favoring conviction of the innocent over acquittal of the guilty. Although standards of proof cannot be equated with error ratios in a simple manner, the problem lies not with probabilistic decision thresholds but with the desire to achieve a certain error ratio.

Part V Fairness and Expeditiousness of ICC Proceedings, 34 The International Criminal Standard of Proof at the ICC—Beyond Reasonable Doubt or Beyond Reason?

2015 ◽  
Author(s):  
Smet Simon De
Keyword(s):  
International Criminal ◽  
Essential Feature ◽  
Reasonable Doubt ◽  
Standard Of Proof ◽  
Standards Of Proof ◽  
Complex Balancing ◽  
Fact Finding ◽  
Definition Of

Standards of proof are a common and essential feature of modern systems of adjudication. The definition of the criminal standard of proof before the ICC has, however, not been a straightforward matter. The Katanga judgment shows deep divisions among the judges on the interpretation of the international criminal standard of proof. This chapter discusses the theoretical choices involved in setting the standard of proof. It argues that any meaningful discussion of standards of proof must involve two different elements: the determination of a model of judicial fact-finding to determine how the standard of proof can be defined, and a complex balancing exercise of all the relevant interests in order to set the applicable standard.

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.

Moral Certitude: Merits and Demerits of the Standard of Proof Applied in Roman Catholic Jurisprudence

2019 ◽  
Vol 8 (2) ◽  
pp. 300-325
Author(s):  
Judith Hahn
Keyword(s):  
Catholic Church ◽  
Canon Law ◽  
Burden Of Proof ◽  
Roman Catholic ◽  
Convincing Evidence ◽  
Reasonable Doubt ◽  
Criminal Cases ◽  
Standard Of Proof ◽  
Standards Of Proof ◽  
Anglo American

Abstract In Roman Catholic canon law, moral certitude describes the ecclesiastical judge’s full conviction that a defendant is guilty or that a statement of claim made by a civil plaintiff is rightful. Moral certitude is the requirement for a conviction or a civil sentence in favour of the party under the burden of proof. Secular legal orders apply other standards. Anglo-American legal cultures mostly refer to the beyond a reasonable doubt standard in criminal cases, the preponderance of evidence, or the clear and convincing evidence standard in civil matters. Continental European cultures predominantly refer to the standard of full conviction in criminal and civil matters alike. This article compares those standards of proof with moral certitude in order to better understand its merits and limits. Based on this comparison, it examines the arguments both in favour of and against abiding with moral certitude as a standard of proof in the Catholic Church.

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