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Duggal, K.A.N. (2019)

Principles of evidence in investor-state arbitration: burden, standards, presumptions & inferences

Doctoral Thesis
The research examines publically known investor-state cases, supplemented by views of leading commentators, to identify evidentiary principles dealing with burden of proof, standard of proof, presumptions and inferences. In this research, I conclude that investor-state tribunals have indeed recognized and applied evidentiary principles on burden of proof, standard of proof, presumptions and inferences. These principles do not always flow from the generally accepted view on arbitral discretion. Rather, these principles have been generally recognized under the rubric of general principles of law. I conclude that the failure to meet the evidentiary principle can have consequences, although the precise consequence varies based on the principle. For example, the failure to meet some of the principles (e.g., burden of proof) can have very severe consequences (e.g., annulment of an ICSID award) but for other principles like whether or not a tribunal should draw an inference would depend...Show moreThe research examines publically known investor-state cases, supplemented by views of leading commentators, to identify evidentiary principles dealing with burden of proof, standard of proof, presumptions and inferences. In this research, I conclude that investor-state tribunals have indeed recognized and applied evidentiary principles on burden of proof, standard of proof, presumptions and inferences. These principles do not always flow from the generally accepted view on arbitral discretion. Rather, these principles have been generally recognized under the rubric of general principles of law. I conclude that the failure to meet the evidentiary principle can have consequences, although the precise consequence varies based on the principle. For example, the failure to meet some of the principles (e.g., burden of proof) can have very severe consequences (e.g., annulment of an ICSID award) but for other principles like whether or not a tribunal should draw an inference would depend on its assessment of the evidence and, therefore, as a general matter cannot be the subject of an annulment. Show less
Investor-state arbitration
Evidence
Burden of proof
Standard of proof
Presumptions
Inferences
All authors
Duggal, K.A.N.
Supervisor
Brabandere, E.C.P.D.C. de
Co-supervisor
Hébié, M.
Committee
Koppenol-Laforce, M.E.; Snijders, H.J.; Kjos, H.E.; Tams, C.J.
Qualification
Doctor (dr.)
Awarding Institution
Law, Leiden University
Date
2019-02-28