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Contents
- Preliminary Material
- Main Text
- Part I Introduction
- Part II Burden and Standard of Proof in International Investment Arbitration
- 2 Burden of Proof in Investor-State Arbitration
- Preliminary Material
- I Introduction and Position of the Burden of Proof in International Law
- II Applicability and Prevalence of the Basic Rule in International Arbitration
- 2.05
- 2.06
- 2.07
- A The basic rule applies to factual allegation of the party making the assertion—whether claimant or respondent
- B Additional rules on burden clarified by tribunals
- 2.14
- 1 Burden of proof and hardship: the burden of proof is not altered because of the hardships suffered in obtaining and submitting evidence by the party upon which it is placed
- 2 Burden of proof and comparative ease of access to evidence: the burden of proof is not altered because the non-moving party has greater ease of access to probative evidence
- 3 Burden of proof and default: the burden of proof is not discharged by the non-moving party’s failure to participate in arbitral proceedings
- 4 Burden of proof applies throughout the arbitral process including various motions that might be brought
- C Function of the rule
- III Burden of Proof and the Jurisdictional Phase of a Case
- 2.30
- A Burden of proof in the initial establishment of jurisdiction
- B Burden of proof in the initial establishment of a cognizable claim
- C Respondent’s rebuttal of factual questions in the establishment of jurisdiction
- D Respondent’s burden of proof at the jurisdictional phase
- E Function of the jurisdictional burden of proof
- IV Burden of Proof and the Damages Phase of a Case
- V Timeframe in which a Burden Must Be Discharged
- VI Consequence of Failure to Discharge a Burden of Proof
- VII Problems in the Application of this Basic Principle
- 3 Shifting the Burden of Evidence
- Preliminary Material
- I Introduction and Position in International Law
- II The Shifting Principle in Investor-State Arbitration
- III Doctrine of Presumptions and Shifting the Evidence
- IV The Shifting Rule and the Jurisdictional Phase of the Case
- V Consequences of the Rule
- VI Problems in the Application of Shifting of Evidence
- 4 Introduction to the Standard of Proof in Investor–State Arbitration
- Preliminary Material
- I Introduction and Position in International Law
- II Relationship between the Burden of Proof and Standard of Proof
- III An Overview of the Standard of Proof
- IV Tribunal’s Discretion to Deal with Evidentiary Matters to Its Own Satisfaction
- V Problems Associated with the Doctrine of Standard of Proof
- 5 Different Standards of Proof in Investor-State Arbitration
- Preliminary Material
- I Introduction and Position in International Law
- II Pro Tem (Prima Facie) Evidence at the Jurisdictional Phase
- III Balance of Probabilities or Preponderance of Evidence
- IV Heightened Standard of Proof
- V The Special Case on Corruption, Fraud, Impropriety, and other Allegations of Wrongdoing More Generally
- VI Evidentiary Consequences of Wrongdoings
- VII The Use of Circumstantial Evidence
- 2 Burden of Proof in Investor-State Arbitration
- Part III Presumptions and Inferences
- 6 Evidentiary Presumptions
- Preliminary Material
- I Presumptions in General
- II Arbitration Rules and the Application of Presumptions in General
- III Judicial Presumptions
- IV Legal Presumptions
- V Legal Presumptions Developed by Investor-State Tribunals in the Jurisdictional Context
- 6.37
- A Official home state certification of nationality entails nationality
- B Registration in the shareholder registry gives entails ownership
- C Majority ownership entails control of an enterprise
- D Effective control, once established, is continuous
- E The making of an investment contributes to the host state economy
- F MFN clauses presumptively do not extend a consent to arbitration
- VI Legal Presumptions Developed by Investor-State Tribunals in the Merits Context
- VII Legal Presumptions Developed in the Remedies Context
- VIII Conclusion
- 7 Iura Novit Curia and Proof of Law
- 8 Inferences from Evidence or Its Absence
- Preliminary Material
- I Inferences in General
- II Plausibility as Measure for the Drawing of Inferences
- III Inferences outside the Merits Context
- IV Inferences Arising from the Record
- V Circumstances Significant in Rebutting the Drawing of Record Inferences
- VI Inferences Arising from the Misconduct of the Parties in Adducing Evidence (eg Failure to Produce Documents) in Arbitral Proceedings
- 8.42
- A Function of the rule
- B Severity of procedural bad faith
- C Relationship of procedural bad faith to the fact to be proved
- D The importance of procedural clean hands of the party seeking an inference
- E The relationship of inferences arising from party misconduct and inferences arising from the record
- F The significance of the inference
- VII Conclusion
- 6 Evidentiary Presumptions
- Part IV Proving Your Case
- 9 Documentary Evidence and Document Production
- Preliminary Material
- I Introduction
- II Documents
- III Document Production
- 9.23
- A Discovery versus document production
- B No ‘fishing expedition’
- C The Arbitral Rules on Document Production
- D Request to produce
- E Use of Redfern schedules to aid in the document production process
- F Criteria for document production
- G Privilege, privilege logs, and appointment of experts
- H Consequences of failing to meet a tribunal’s order on document production
- 10 Witnesses and Experts
- Preliminary Material
- 10.01
- 10.02
- I Party Fact Witnesses
- II Cross-examination of a Witness
- A Calling a witness for cross-examination
- B Cross-examination by tele- or video-conference
- C Function of cross-examination
- D Scope of cross-examination
- E Method of cross-examination
- F Objections to testimony at the hearing
- G Examination by the tribunal
- H Redirect examination
- I Consequence of non-appearance of a witness called for cross-examination
- III Tribunal of Fact Witnesses
- IV Experts
- A Party expert witnesses
- B Timely identification of party expert witness
- C Qualification of expert witnesses
- D Basis of expert testimony
- E Formal requirements of direct testimony: the expert report
- F Appointment of tribunal experts
- G Calling an expert for cross-examination
- H Methods of expert cross-examination
- I Consequence of non-appearance of an expert called for cross-examination
- V Conclusion
- 9 Documentary Evidence and Document Production
- Part V Safeguarding the Process
- 11 Exclusionary Rules of Evidence
- Preliminary Material
- I Introduction: Absence of Exclusionary Rules in General
- II Exclusion of Evidence and Privilege
- III Exclusion of Evidence and Confidentiality
- IV Exclusion of Evidence on Political or Institutional Sensitivity
- V Exclusion of Evidence to Protect the Right to Be Heard
- VI Exclusion of Evidence to Protect the Equality of the Parties
- VII Exclusion of Evidence to Protect Fundamental Principles of International Public Policy
- VIII Conclusion
- 12 Evidence and Annulment
- 11 Exclusionary Rules of Evidence
- Further Material
- Appendix I Evidentiary Principles in Investor-State Arbitration
- Part I— The Burden of Proof
- Part II— The Standard of Proof
- Part III— Direct and Circumstantial Evidence
- Part IV— Shifting Burden of Evidence
- Part V—Presumptions
- §13 Presumptions in General
- §14 Types and Hierarchy of Presumptions
- §15 Legal Presumptions (Praesumptiones iuris)
- §16 Proof of Legal Presumptions
- §17 Rebuttable Legal Presumptions Reflected in Investor-State Jurisprudence on Jurisdiction
- §18 Rebuttal Legal Presumptions Reflected in Investor-State Jurisprudence on the Merits
- §19 Rebuttable Legal Presumptions Reflected in Investor-State Jurisprudence on Remedies
- §20 Judicial Presumptions (Praesumptiones hominis)
- §21 Proof of Judicial Presumptions
- §22 Factors Relevant in Establishing Judicial Presumptions
- Part VI—Judicial Notice and Iura Novit Curia
- Part VII—Inferences
- Part VIII—Exclusionary Rules of Evidence
- §30 Exclusionary Rules in General
- §31 Burden of Proof regarding Exclusion of Evidence
- §32 Privilege in General
- §33 Applicable Law and Privilege
- §34 Types of Privileges
- §35 Factors Relevant to Privileges in General
- §36 Attorney Client Privilege
- §37 Work Product Privilege
- §38 Privilege of Communications with In House Counsel
- §39 Cabinet Privilege
- §40 Secrecy of Ongoing Investigations
- §41 Waiver of Privilege
- §42 Confidentiality
- §43 Factors Relevant to Confidentiality in General
- §44 Commercial & Technical Confidentiality
- §45 Instances of Commercial Confidentiality Recognized in Jurisprudence
- §46 Instances of Technical Confidentiality Recognized in Jurisprudence
- §47 Other Confidentiality Interests
- §48 Exclusion of Evidence Threatening a Party’s Right to Be Heard
- §49 Exclusion of Evidence Submitted Outside the Ordinary Course
- §50 Exclusion of Evidence Threatening the Equality of Arms Between the Parties
- §51 Exclusion of Evidence to Protect Fundamental Principles of International Public Policy
- Part IX— Documents & Document Production
- §52 Taking of Evidence by the Tribunal in General
- §52 Document Defined
- §53 Contemporaneous Documents
- §54 Translation of Documents
- §54 Authenticity of Documents
- §55 Requests for Production of Documents in General
- §56 Request to Produce
- §57 The Request must be Relevant to the Case
- §58 The Request must be Material to the Outcome
- §59 The Request must be Narrow and Specific
- §60 The Request Must Not Impose an Unreasonable Burden on the Producing Party
- §61 Belief that the Documents are in Possession, Custody, or Control of Documents Requested
- §62 Privilege Logs and Appointment of Experts
- §63 Failure to Comply with Document Production Obligations
- Part X—Witnesses
- §64 Purpose of Witness Testimony
- §65 Evidence-in-Chief, Defined
- §66 Written Testimony as Evidence-in-Chief
- §67 Timing of Evidence-in-Chief
- §68 Substance of Evidence-in-Chief
- §69 Additional Formal Requirements for Evidence-in-Chief
- §70 Language of the Testimony
- §71 Calling Witnesses for Cross-Examination
- §72 Objection to Call of a Witness for Cross-Examination
- §73 In-Person and Remote Cross-Examination
- §74 Order of Cross-Examination
- §75 Time Allocation for Cross-Examination
- §76 Exclusion of Witnesses from Cross-Examination of Other Witnesses (Sequestration of witnesses)
- §77 Direct Examination of Witnesses at the Hearing
- §78 Scope of Cross-Examination
- §79 Permissible Types of Cross-Examination
- §80 Permissibility of Leading Questions
- §81 Conduct of Hearing Examination
- §82 Consequence of Non-Appearance of a Party Witness
- §83 Tribunal Fact Witnesses
- §84 Party Application to Call a Tribunal Fact Witness
- §85 Scope of Testimony of a Tribunal Fact Witness
- §86 Evidence in Chief of a Tribunal Fact Witness
- §87 Consequence of Non-Appearance of a Tribunal Witness
- §88 Expert Opinion, Defined
- §89 Purpose of Expert Testimony
- §90 Written Report as Opinion Testimony
- §91 Timing of Expert Opinions
- §92 Substance of Expert Opinions
- §93 Additional Formal Requirements for Expert Opinions
- §94 Tribunal Expert
- §95 Calling an Expert for Cross-Examination
- §96 Method of Live Examination
- §97 Consequence of Non-Appearance of an Expert
- Appendix II Table Summarizing the Commonly Recognized Standards of Proof in Investor-State Arbitration
- Index
- Appendix I Evidentiary Principles in Investor-State Arbitration
