Available in Russian
Author: Adam Nal’giev
DOI: 10.21128/2226-2059-2023-3-65-87
Keywords: investment arbitration; investment disputes; reform; inconsistent practice; burden of proof; standards of proof
Reform of the existing system of investment dispute settlement has been on the agenda of the United Nations Commission on International Trade Law (UNCITRAL) for several years now. One of the main problems negatively affecting the legitimacy of the current regime is the inconsistent practice of investment tribunals pertaining to the application of investment treaties. States have suggested different solutions, including institutional reforms such as creating a multilateral investment court or a permanent appellate body, as well as the development and adoption of instruments of authoritative interpretation. However, these options have been discussed exclusively in relation to the practice of investment tribunals regarding the interpretation and application of provisions of investment treaties, while what remains unaddressed is the practice regarding issues that seldom find any embodiment in the text of investment treaties, specifically, issues of burden of proof and standard of proof. In this article, the author discusses the problem of inconsistent practice of investment tribunals regarding burden of proof and standard of proof that had previously been widely covered in academic literature. The author demonstrates that, on various issues pertaining to the allocation of burden of proof or determining the standard of proof applicable to certain factual statements, investment tribunals frequently come to diametrically opposed conclusions which are not predetermined by the applicable law or the circumstances of the particular case. As a result, this practice has a negative influence on the existing system of settlement of investment disputes. The author seeks to evaluate the extent to which the reform options are capable of tackling the problem described, as well as whether proposals of additional directions of reform, namely the adoption of “soft law” instruments on the issues of burden and standards of proof as guiding principles, are capable of doing this.
About the author: Adam Nal’giev – Ph.D. Student, School of International Law, Faculty of Law, Higher School of Economics, Moscow, Russia.
Citation: Nal’giev A. (2023) Neposledovatel’nost’ praktiki investitsionnykh tribunalov po voprosam dokazyvaniya: mozhet li reforma chto-to predlozhit’? [Inconsistency in the practice of investment tribunals on issues of proof: does the reform have anything to offer?]. Mezhdunarodnoe pravosudie, vol. 13, no. 3, pp. 65–87. (In Russian).
References
Arato J. (2016) The Logic of Contract in the World of Investment Treaties. William & Mary Law Review, vol. 58, no. 2, pp. 351–417.
Brown C., Ortino F., Arato J. (2019) Parsing and Managing Inconsistency in Investor-State Dispute Settlement. Academic Forum on ISDS Concept Paper. Available at: https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1214&context=other (accessed: 23.06.2023).
Clermont K.M., Sherwin E. (2002) A Comparative View of Standards of Proof. The American Journal of Comparative Law, vol. 50, no. 2, pp. 243–275.
Cortesi G.A. (2022) Proof and the Burden of Proof in International Investment Law, Cham: Springer.
Draguiev D. (2014) Bad Faith Conduct of States in Violation of the “Fair and Equitable Treatment” Standard in International Investment Law and Arbitration. Journal of International Dispute Settlement, vol. 5, no. 2, pp. 273–305.
Duggal K. (2019) Principles of Evidence in Investor-State Arbitration: Burden, Standards, Presumptions & Inferences: Ph.D. Dissertation, Leiden: Leiden University.
Franck S.D. (2005) The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law through Inconsistent Decisions. Fordham Law Review, vol. 73, no. 4, pp. 1521–1625.
Franck S.D., Wylie L.E. (2015) Predicting Outcomes in Investment Treaty Arbitration. Duke Law Journal, vol. 65, no. 3, pp. 459–526.
Gantz D.A. (2021) An Appellate Mechanism for Review of Arbitral Decisions in Investor-State Disputes. Vanderbilt Law Review, vol. 39, no. 1, pp. 39–76.
Grebel’skiy A.V. (2017) Dokazatel’stva v mezhdunarodnom kommercheskom arbitrazhe: Dis. … kand. yurid. nauk [Evidence in international commercial arbitration: Cand. in law sci. diss.], Moscow. (In Russian).
Giupponi B.O., Yu H.-L. (2022) Analysing Obstacles and Challenges in Fighting Corruption in Cases of Illegal Investments. Laws, vol. 11, no. 4, pp. 1–25.
Howard D.M. (2017) Creating Consistency through a World Investment Court. Fordham International Law Journal, vol. 41, no. 1, pp. 1–52.
Kaysin D.V., Demina M.O. (2018) Mezhdunarodnyy investitsionnyy sud: byt’ ili ne byt’? [International investment court: to be or not to be?]. Zhurnal zarubezhnogo zakonodatel’stva i sravnitel’nogo pravovedeniya, no. 4, pp. 89–95. (In Russian).
Lee S.-W. (2021) ISDS Reform: Analysis on Establishing a Multilateral Investment Court System. Arbitration: The International Journal of Arbitration, Mediation and Dispute Management, vol. 87, no. 4, pp. 484–506.
Mouawad C., Beess und Chrostin J. (2021) The Illegality Objection in Investor-State Arbitration. Arbitration International, vol. 37, no. 1, pp. 57–95.
Puig S., Shaffer G. (2018) Imperfect Alternatives: Institutional Choice and the Reform of Investment Law. American Journal of International Law, vol. 112, no. 3, pp. 361–409.
Rachkov I. (2014) Soglasie gosudarstva na rassmotrenie mezhdunarodnykh investitsionnykh sporov [The state consent to the resolution of its disputes with foreign investors]. Mezhdunarodnoe pravosudie, vol. 4, no. 4, pp. 96–122. (In Russian).
Rachkov I. (2016) Reforma mezhdunarodno-pravovogo uregulirovaniya sporov mezhdu inostrannymi investorami i gosudarstvami [Reforming international resolution of disputes between foreign investors and host states]. Mezhdunarodnoe pravosudie, vol. 6, no. 3, pp. 118–136. (In Russian).
Rachkov I.V., Magomedova O.S. (2019) Investitsionnyy sud: obzor initsiativy ES [Investment court: review of the EU initiative]. Moskovskiy zhurnal mezhdunarodnogo prava, no. 2, pp. 54–69. (In Russian).
Sabahi B., Rubins N., Wallace D., Jr. (2019) Investor-State Arbitration, 2nd ed., Oxford: Oxford University Press.
Schilling de Carvalho P., Della Valle M. (2022) Corruption Allegations in Arbitration: Burden and Standard of Proof, Red Flags, and a Proposal for Systematization. Journal of International Arbitration, vol. 34, no. 6, pp. 817–861.
Sourgens F.G. (2013) By Equal Contest of Arms: Jurisdictional Proof in Investor-State Arbitrations. North Carolina Journal of International Law, vol. 38, no. 3, pp. 875–954.
Sourgens F.G., Duggal K., Laird I. (2018) Evidence in International Investment Arbitration, Oxford: Oxford University Press.
Swinehart M.W. (2020) Institutionalism, Legitimacy, and Fact-Finding in International Disputes. Florida State University Law Review, vol. 47, no. 2, pp. 279–336.
Ten Cate I. (2013) The Costs of Consistency: Precedent in Investment Treaty Arbitration. Columbia Journal of Transnational Law, vol. 51, pp. 418–478.
Vecchione E. (2011) Science for the Environment: Examining the Allocation of the Burden of Uncertainty. European Journal of Risk Regulation, vol. 2, no. 2, pp. 227–239.
Zarra G. (2018) The Issue of Incoherence in Investment Arbitration: Is There Need for a Systemic Reform? Chinese Journal of International Law, vol. 17, no. 1, pp. 137–185.
Wiebecke M. (2022) The Investment Treaty Arbitration Review: Evidence and Proof. The Law Reviews. 14 June. Available at: https://thelawreviews.co.uk/title/the-investment-treaty-arbitration-review/evidence-and-proof (accessed: 23.06.2023).