Research On The Rules Of Evidence In Investor-State Arbitration

Investor-state arbitration is the most important legal method to resolve investment disputes between foreign investors and the host states of investment.With the rapid increase in the number of arbitration cases in the past ten years,it has attracted more and more attention from the international community.Research is also richer and more diverse.In any legal system,evidence is essential to dispute settlement.The research on the evidence rule in investor-state arbitration will not only help to relieve the doubt on the legitimacy of the mechanism,promote the healthy and sustainable development of the mechanism,but also provide a feasible guide and reference for the effective use of evidence in the arbitration practice.After taking the lead in discussing the basic issues of investor-state arbitration evidence rules,this article analyzes,demonstrates and summarizes several specific evidence rules in this field in the order from "evidence theory" to "proof theory" according to the natural logic of the operation of the evidence system,And finally provide suggestions on how to effectively use this evidence rule in China.Apart from the introduction and conclusion,this dissertation is composed of six chapters.Chapter I explains some basic issues of investor-state arbitration evidentiary rules.This chapter first examines the basis of the evidence rules.After determining that the strict domestic procedural evidence rules are not applicable to the international arbitration evidence system,this chapter first introduces and discusses the division of main systems of the current investor-host state arbitration system,main provisions on evidentiary matters and important soft evidence rules.Then,in view of the reality that the arbitration system grants the arbitral tribunal greater discretion in evidence,it is pointed out that the autonomy of the parties and the arbitral tribunal’s general compliance with the accepted evidence principle constitutes the necessity of the existence of the evidence rules of investor-state arbitration,and the mechanism of review and annulment of awards guarantees the actual existence of the rules of evidence.In view of the fact that procedural bifurcation/ trifurcation is a distinctive practice in investment arbitration and has an important impact on the specific application of evidence,this chapter summarizes the consideration factors of whether the arbitration practice should divide the procedure or not,and demonstrates the possible impact of the division of jurisdiction and substantive issues on the burden of proof,proof standards,evidence submission and judicial recognition and other specific evidence rules.Chapter II discusses the evidence production and inquiry rules in the investor-state arbitration.This chapter takes the admissibility of evidence as the starting point for the research of the entire chapter,briefly analyzes the origin and connotation of the systems expressed as different concepts in the two major legal systems,and discusses important initial procedural meetings,written procedures and oral procedures in investor-state arbitration.Briefly elaborating on other key procedural stages,using this as the basis for argumentation and questioning of evidence.In terms of the rules for the presentation of documentary evidence,it focuses on the priority of documentary evidence in the international arbitration evidence category,the authenticity of documentary evidence and translation issues,and the key elements that the arbitral tribunal considers when facing a request for documentary evidence disclosure.In terms of the rules for the submission of verbal evidence,the focus is on detailed discussions on the content and time limit requirements of the witness’ s written statements and expert reports,the appointment of independent experts,and the occasions to appear in court.Based on this,this chapter summarizes and summarizes the methods and scope of inquiries by parties to witnesses and experts of the other party in court trials,and the rules of evidence inquiry by the arbitration tribunal for summoning and interrogating witnesses and experts.Chapter III sorts out several types of typical reasons that lead to the exclusion of evidence in investor-state arbitration.In fact,this chapter further discusses the issue of the admissibility of evidence from a reverse perspective,and thus constructs a relatively complete rule of evidence admissibility together with the second chapter.After clarifying that the exclusion of evidence in investor-state arbitration is relatively limited but does exist and deserves attention,the most important issue of privileges in this field is first discussed.In terms of content,it focuses on a comprehensive analysis of the consideration factors for the application of privileges by the arbitration tribunal in practice,the main types of privileges and the review and determination of privileges.Afterwards,the exclusion rules based on the confidentiality of evidence are studied,and the focus of the analysis is the type of confidential information,the proof and review of the existence of confidentiality of the evidence.And on this basis,the difference between confidentiality and special immunity in the practical application of evidence exclusion is compared.In addition,based on the review of arbitration cases in practice,this chapter also summarizes the circumstances where evidence is excluded in an illegal manner in order to safeguard the right to hearing a case and protect the equality of both parties in arbitration.Chapter IV analyzes the evidence rules related to the burden of proof in investor-state arbitration.First,on the basis of clarifying the two connotations of the concept of the burden of proof,this paper makes an in-depth analysis of the general principle of allocation of the burden of proof,the process of transferring the burden of production and the consequences of failure to perform the burden of proof,and enumerate and discuss typical allocation of the burden of proof in arbitration cases by distinguishing the stages of jurisdiction and damages.Secondly,it analyzes the applicable characteristics of the proof standards in investor-state arbitration,and summarizes the three main proof standards that are applied to different items to be proof,including prima facie standard,preponderance of evidence,and heightened standard.Thirdly,on the issue of presumption closely related to the burden of proof and the standard of proof,we should clarify the nature,classification and function of the presumption in the investor-state arbitration,and then distinguishing the jurisdiction stage from the substantive stage to enumerate some typical examples that have appeared in the arbitration practice.Finally,it is proved that it is difficult to determine the true claimant of the facts of jurisdictional elements that have appeared in the past arbitration practice,and the excessive burden of persuasion has caused investors to suffer substantive inequality,the interpretation method of consent to the arbitration clause is unreasonable,and the application of the apparent factual standard is too loose.The shortcomings that exist in the application of the liability rules,and put forward hierarchical and feasible countermeasures.Chapter V examines some rules related to evidence determination in the investor-state arbitration.Firstly,based on the fact that direct evidence is often difficult to obtain in the practice of investor-state arbitration,this chapter discusses the rules of fact inferences based on indirect evidence in arbitration records.After analyzing the function of applicable inferences,the clause support in the arbitration rules,and the plausibility theory on which the inferences are based,the focus is on studying cases to summarize several factors that the arbitral tribunal considers when using inferences to determine facts in practice.Second,in view of the fact that the parties’ improper presentation of evidence often occurs in arbitration practice,it may further hinder the provision of evidence required to examine the facts in dispute.The adverse inferences of deterrence and correction of such behavior is also a necessary content of the argument in this chapter.The focus of the analysis is on the arbitral tribunal conducts research,judgment and summary of various factors that need to be considered when using adverse inferences.Third,since the arbitral tribunal must interpret and analyze the laws related to the determination of facts in the process of making an award,the third section of this chapter will probe into the legitimacy and rationality of the principle of jura novit curia and the application of judicial notice in the investor-state arbitration.Chapter VI studies the China’s strategy for the utilization of rules of evidence in the investor-state arbitration.This chapter first examines several typical issues concerning the application of evidence in China-related cases,with a focus on issues such as evidence preparation and proving strategies in disputes over the application of new and old BIT,the application of the standard of proof in the preliminary objection procedure for invoking ICSID arbitration,and the extension of most-favored-nation treatment to dispute resolution matters.Then,based on the argumentation and conclusion of the whole article,the author provides some feasible suggestions for the Chinese government and investors to apply the rule of evidence more effectively in the future.