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Evidence in Investor-State Arbitration - A Restatement

Freddy Sourgens, Washburn University School of Law, Kabir Duggal, Baker & McKenzie LLP, and Ian Laird, Crowell & Moring LLP

4th May 2018

Public discourse today suffers from an acute onset of “alternative facts.” In the U.S., a satirist recently poked fun that the trademark make-up of the White House spokesperson – smoky eyes – were made from ashes of “burnt facts.” Smokescreens, make up, and creative invocation of facts are by no means limited to the U.S. One need just read the dueling Russian and Western pronouncements regarding the poisoning of Sergei Skripal and Yulia Skripal to infer that one account at least must rely upon evidence that has, charitably, a tenuous relationship to reality. This development is certainly not new to international affairs. One need only refer to the excellent work of Christopher Clark in The Sleepwalkers to find examples of misinformation and forged documents poisoning the relationship between Austria-Hungary in Serbia in the run up to World War I to find historical precedent. Yet, as Christopher Clark so poignantly observes, the failure to understand and act upon facts rather than narratives would prove to have disastrous consequences for the Europe and the World in July 1914.

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Image credit: Benjamin Child [Public Domain] via Unsplash

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