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

Subject(s):

Evidence

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.