7 Evidentiary Issues
Jeffery Commission, Rahim Moloo
This chapter examines evidentiary issues that arise in investment arbitrations. It first reviews the basic procedures through which the evidentiary record is generally established in international arbitrations before discussing the procedural rules that usually apply in investment arbitration cases. In particular, it considers both the mandatory law and the specific rules that parties are likely to select as applying to an investment dispute. It then explains how tribunals in investment arbitrations have approached key evidentiary issues differently than tribunals in commercial cases, paying attention to issues relating to the collection and presentation of evidence that could apply to any investment dispute. The chapter proceeds by analysing unique evidentiary issues that arise in the context of allegations of corruption and concludes with a brief overview of the unique rules for amicus-curiae submissions that address an additional source that arbitral tribunals may take into account in investment, but generally not commercial, arbitrations.