Chapter 10 Investment arbitration as incubator of evidentiary principles in international and transnational law
Restricted access

This chapter examines how investor-state arbitration can serve as an incubator for the development of rules of evidence in general international law. The chapter focuses in particular on International Court of Justice and general international law arbitral proceedings as a comparator. The chapter outlines how investor-state arbitration consciously drew on general international law in the development of the evidentiary principles guiding decision-making in investor-state arbitration. It examines how these evidentiary principles developed further in the now significant investment law jurisprudence. It argues that investor-state arbitration allowed the rules to come to a greater level of maturity due to the reasonably abundant number of cases, as well as due to the significant availability of factual evidence in investor-state arbitration. The chapter outlines how the lessons from investor-state arbitration might in turn inform perspectives in general international law. In particular, the chapter argues that the lessons of investor-state arbitration can meaningfully add to existing evidentiary principles in general international law and further act as the occasional corrective in instances in which general international legal proceedings have somewhat underperformed the aspirations of early evidentiary rules. The chapter examines three particular areas of the law of evidence: (1) burdens and standards, (2) inferences and presumptions, and (3) the treatment of witnesses and experts.

You are not authenticated to view the full text of this chapter or article.

Access options

Get access to the full article by using one of the access options below.

Other access options

Redeem Token

Institutional Login

Log in with Open Athens, Shibboleth, or your institutional credentials

Login via Institutional Access

Personal login

Log in with your Elgar Online account

Login with you Elgar account
Monograph Book