The Standards and Burden of Proof in International Arbitration

Abstract

The following seven contributions are the edited and revised papers delivered at the Joint Colloquium of the School of International Arbitration at the Centre for Commercial Law Studies, Queen Mary and Westfield College, University of London and the Institute of International Business Law and Practice of the International Chamber of Commerce, which was held in London in 1992. The editors acknowledge the co-sponsors' permission to publish these texts; and express their thanks to Mr Brian Schwab who assisted in the preparation for publication of these papers. ANY EXPERIENCED lawyer who is faced with putting forward, or defending, a claim on behalf of a client will start by asking that client a series of questions. Sometimes these questions may be so much to the point that the client will be drawn to protest: ‘Whose side are you on? Their side or mine?’ But is essential to know not only the strengths but also the weaknesses of any case, before putting it forward. Once the outline of the case becomes clear, another series of questions emerges. ‘How are we going to prove our case? What evidence is there? Are there any documents which support the factual arguments we want to put forward? Who are the relevant witnesses and what are they likely to say? Do we need expert opinions to back up our submissions on technical matters? And, in the context of an international commercial arbitration, where the arbitral tribunal may well come from different legal disciplines, how are we going to establish the submissions of law on which we rely? Is this to be done by written briefs, by oral submissions, by calling lawyers to give evidence as to the relevant law – or by some combination of these methods?’ These questions are all, in their different ways, directed to the …