Jesus Ezurmendia & María de los Angeles Gonzalez (University of Chile)

A COMPARISON BETWEEN THE STANDARD OF PROOF APPLICABLE IN

ARBITRATION AND FORMAL ADJUDICATION PROOF*

ABSTRACT
This article aims to describe the application of the standard of proof in arbitration and to question
whether the standard to be applied should be the same or lower than in ordinary civil justice as a
result of the contractual origin of the dispute. The determination of the applicable standard takes
into consideration the equality of arms and other guarantees of due process, along with the fact
of the absence of the standard rule in the AA1996. The arbitrator shall establish these aspects at
the beginning of the process, considering also the rules of burden of proof.
Keywords
Arbitration, evidence law, standard of proof, dispute resolution

I. Introduction

Among the different mechanisms of alternative dispute resolution (ADR), arbitration, which
refers to an impartial referee’s hearing and settling of a dispute between the parties concerned,
holds a privileged place. The appearance of ADRs started, and became an alternative to formal
justice in the U.S. in the 1970s, and is currently being successfully implemented throughout
almost every known jurisdiction with a relatively modern justice system (Twining, 2012).
Long before the ADR idea was installed in legal culture as an alternative to formal justice,
arbitration was considered both as part of the system of conflict resolution in civil and
commercial matters, and as a complement to formal justice. Its first proper regulation by the
British Parliament was the Arbitration Act 1889. Since then, it has gained general acceptance
as a reliable alternative to civil litigation.

Nowadays, recourse to arbitration has grown exponentially in national and international

disputes, when they incorporate an arbitral tribunal or an arbitrator as their dispute resolution
mechanism. It should also be noted that arbitration is currently the most widely used conflict
resolution mechanism in the world (Born, 2009). Many relevant cases are based in the United
Kingdom and utilise English regulations as their applicable law, especially in international
commercial disputes (ibid: 1542). The reasons for the popularity of arbitration are its intrinsic
procedural qualities, including freedom, de-legalization and demystification, together with
advantages over national jurisdiction, including speed, confidentiality, specialization,
flexibility, immediacy and greater involvement of the relevant parties. Considering the breadth
of these features, arbitration is often described as the best form of dispute resolution (Andrews,
2013).

Domestic arbitration in England is regulated by The Arbitration Act 1996 (hereinafter

“AA1996”). Furthermore, prior regulation was designed for the same purpose, which
stipulated most aspects of arbitration activity, such as jurisdiction, applicable laws, initiation
of the procedure, requirements of the award and its adoption before the court. In the quasi-
judicial activity performed by the arbitrator (Emerson, 1970), there is a lack of regulations

*This manuscript is the accepted draft for the final publication of: EZURMENDIA J, GONZALEZ M de los A. A
comparison between the standard of proof applicable in arbitration and formal adjudication. The International
Journal of Evidence & Proof. August 2020. doi:10.1177/1365712720943333.
1
regarding evidence and proof, which is a shortcoming, given that these are some of the most
relevant aspects of any adjudicative instance and decision-making process. In general, there
are neither specific rules governing the approach to evidence in arbitration, nor particular
norms telling the arbitrator how to proceed in these matters. In contrast to formal civil justice,
where evidence is a well-regulated topic, both in statutory and common law, the regulation on
arbitration in AA1996, subsection 34(2)f, assigns the arbitrator the responsibility of ruling the
proceedings under which evidence and proof should be reviewed. Yet, there is no mention
made of evidence or fact-finding as a specific topic.

It is important to remember the steps, also described as stages, of evidence activity. Firstly,
during the inclusion or admissibility step, the judge must examine the relevance of the proof
material offered by the parties and exclude irrelevant and illicit evidence (Lawson, 2017: 21).
Secondly, once this depuration process has been undertaken, and during the trial, the evidence
is presented before the judge (or eventually the jury), who will assess it. Thirdly, they will be
called upon to apply a given standard of proof in order to make a decision on the case (Taruffo,
2008).

Throughout this essay, we will review one of the most significant topics in evidence law,
namely, the standard of proof. Standard of proof can be defined as a probabilistic judgment,
whereby the adjudicator concludes that an allegation of fact made by a party is proven (Allen
and Stein, 2013) and, accordingly, applies the proper law to resolve the conflict. The applicable
standard of proof for civil and commercial cases in formal litigation is clearly established in
England. Due to the increasing use of arbitration for the resolution of similar types of disputes,
it seems necessary to address the question of whether it is consistent that the arbitrator applies
the same standard to arbitration taking place in England and ruled by the AA1996.
Furthermore, this query might lead to a deeper issue, i.e. whether the rules concerning standard
and burden of proof are part of the public policy of English Law and, if so, mandatory even for
informal methods of adjudication, or, on the contrary, whether arbitration, as a private process,
is not bound to those rules. Within this context, the arbitrator, within his/her autonomy, would
be allowed to use different standards, according to the subject matter of the dispute.

This essay will argue that the standard and the burden of proof might be considered a
procedural guarantee for the defendant, as rules under which the law distributes the risk of
error among the parties, by settling: a) which party must bear the obligation to provide enough
evidence, and b) what threshold is required to consider a certain fact proved (Roberts and
Zuckerman, 2010). We will argue that these guarantees can be interpreted as part of a wider
set of procedural rights and principles enshrined constitutionally as due process or procedural
fairness. Due process undoubtedly applies to formal litigation, and some of its basic aspects
have been recognised as necessary in arbitration (Paulsson, 2010). These aspects, according to
Park, would be ensuring that both sides are heard, impartiality and independence (Park, 2011:
26-7).

Although some scholars assert that the function of each of these processes is determined by the
type of conflict, and the fact that arbitration - due to its private nature and the lack of a
constitutional function in the vindication of rights of individuals - should not be considered a
mirror for civil litigation, we argue that the whole arbitration process must respect at least some
aspects of the aforementioned procedural fairness. Within this context, the standard of proof
should be guaranteed for the relevant parties to know which arguments are accepted and/or
rejected in the claim.

As a methodological explanation, this article has undertaken a comprehensive review and a

2
 critical analysis of the relevant literature regarding the topic of evidence and arbitration, in
order to provide a justified proposal of theoretical framework as well as an eventual change to
the AA1996 as a lege ferenda solution.

II. Background on standard of proof and civil process

The standard of proof has been defined as a rule, whose function is to indicate the party bearing
the burden of proof. In other words, it pertains to “how much cogent or convincing the evidence
must be to conclude that a fact actually happened” (Murphy, 2008: 101). The Supreme Court
of The United States has held that the living motive of a standard of proof is “to instruct the
fact-finder about the degree of confidence our society thinks he should have in the correctness
of factual conclusions for a particular type of adjudication”.† This statement highlights that the
standard should fulfil an extra-process function, which is to point out the height of the threshold
for rightfulness in the fact-finding process required within the justice system. In summary, the
standard of proof relates to the level of proof that society requires to consider that a practice
actually occurred (Haack, 2014).

The standard of proof establishes whether a hypothesis can be declared proven according to
the available evidence. The election regarding the standard height in different kind of
proceedings is said to be both a political and judicial decision. In England and Wales, this has
been conceptualized by Lord Hoffman in Re B (Children) (Sexual Abuse) as follows:
If a legal rule requires a fact to be proved (a ´fact in issue), a judge or jury must decide
whether or not it happened. There is no room for finding that it might have happened.
The law operates a binary system in which the only values are 0 and 1. The fact either
happened or did not. If the tribunal is left in doubt, the doubt is resolved by a rule that
one party or the other carries the burden of proof. If the party who bears the burden of
proof fails to discharge it, a value of 0 is returned and the fact is treated as not having
happened. If he does discharge, a value of 1 is returned and the fact is treated as having
happened.‡

In conclusion, the standard of proof stipulates in what way the burden of proof is considered
to be discharged and, consequently, that an allegation of fact is proven. Moreover, the standard
of proof can be understood, as expressed above, as a guarantee to the party against whom a
certain accusation is alleged and, subsequently, the party that alleges the fact will have to bear
the burden of its proof, providing enough evidence to overcome the minimum that the law
requires in order to take the fact as verified to meet the standard. From an epistemological point
of view, the standard of proof is interpreted on a probabilistic scale that goes from 0 to 1,
requiring at least a value over 0.5 to recognize a fact as true (Laudan, 2006).
The evidentiary procedure that culminates in the application of a standard of proof to decide in
a legal situation is no different from the decision-making process in any other field of
knowledge (ibid). In this order of things, the evidentiary standard will be use, in simple words,
to establish when a factual statement is justified or should be considered true according to the
evidence provided during the process. At this point, and after a detailed analysis of evidence
with the truth and falsity of an affirmation, it should be determined only in accordance to the
latter whether the background is sufficient to accept or reject the claim, that is, independent of
the possibly applicable legal rules. Hence the standard must be applied regardless of whether or
not the person entitled to decide has any legal training

The standard division in English law is twofold: the balance of probabilities and beyond any
reasonable doubt (Zuckerman, 2013). The latter has been established for criminal cases, where

† In Re Winship 397 US 358, 370 (1970).

‡ Re B (children) [2009] AC 11, quoting from In Re Winship 397 US 358, 370 (1970).
3
 the scale of persuasion is nearly 1, whereas the former is utilized in civil justice as the general
rule, where the threshold is lower and is met at any value over 0.5. The difference between
both standards is justified in the distinction of the values and public concern regarding the legal
rights at stake. The standard is understood as a rule for the allocation of errors, of false positives
and false negatives, whereby the parties bear the risk in the case where the barrier established
by the standard is exceeded (Laudan, 2006). In criminal process, the risk for the accused is
his/her liberty and in some cases his/her life — the ultimate possible values. As the criminal
process concerns a guarantee for the correct and proportionate exercising of those rights, a
higher standard as part of those guarantees is needed, considering that the risk of a false
positive is the imprisonment of an innocent person (ibid: 14). Likewise, in civil and
commercial cases, litigation engenders economic consequences, where the risk borne by the
losing party is the payment of damages or the fulfilment of specific acts, and in a cost-shifting
system such as the English system, the costs for litigation.

III. The general rule and exceptions in Civil and Commercial matters

As argued above, the standard in civil cases is the balance of probabilities. This was established
in LJ Denning´s Miller v Minister of Pensions§ (which highlighted that the standard is met
when “we think it is more probable than not” (Hannibal and Moutford, 2002: 457). The
aforementioned has been reaffirmed by the common law over the years, even in relatively
recent judgments such as Re H (Minors) (Sexual Abuse: Standard of Proof),** where Lord
Nichols completed the definition by declaring that: “The balance of probabilities standard
means that a court is satisfied an event occurred if the court considers that, on the evidence,
the occurrence of the event was more likely than not”. That is to say, is the suppletory standard
in the civil cases.

Although this threshold has been established as the default standard, it can be criticized, on the
basis that the level of probability that is posed is too low. In other words, to come to a decision
we should not only abide, in some cases, by one more piece of evidence from the opposing
party or a lack of evidence from the latter. In these cases, the most probable version is not
necessarily the truest one (Taruffo, 2008). In addition, each type of proceeding provides a
different protection framework depending on the values at stake — the more important the
value, the higher the standard, and vice versa.

In accordance with the aforementioned, exceptions are warranted. The first exception occurs
when — within civil proceedings — committal proceedings for civil contempt of court are
undertaken (Hannibal and Moutford, 2002). Hence, due to the quasi-criminal nature and
criminal-like consequences of the contempt — liberty privation — the standard must be raised
to the criminal parameter, beyond any reasonable doubt, as stated by the Court of Appeal in
Dean v Dean.††

Additionally, there are always explicit exceptions in statutory law. The Royal Warrant Act
1949 may be mentioned as one noteworthy case. In Judd v Minister of Pensions and National
Insurance [1966] 2 QB 580, it was explicitly mentioned that, in the aforementioned Act,
Parliament introduced the necessity of a standard beyond any reasonable doubt to prove that
the evidence was insufficient to effectively support the applicant´s claim (Hannibal and
Moutford, 2002).

In the case that a civil proceeding deals with conduct that could lead to criminal offences, such

§ Miller v Minister of Pensions [1947] 2 All ER 372.

**Re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563.
†† Dean v Dean [1987] 1 FLR 517.

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 as fraud, the standard remains in the balance of probabilities, as now has been clearly defined
by the House of Lords in Re B (Children) (Care proceedings: Standard of Proof)‡‡ and
confirmed by the Supreme Court in Re S-B (Children) (Care proceedings: Standard of
proof).§§ This approach demonstrates that one of the most important issues that is taken into
account in the elaboration of a standard of proof is the seriousness of the consequences of the
proceedings and not the seriousness of the allegation.

IV.Arbitration and evidence

Arbitration in England and Wales has mostly been considered as a private matter (Brunet,
1992). By entering into an arbitration agreement, the parties involved submit the dispute to an
impartial third person, which is entitled to solve it using broad faculties to conduct the
proceedings (ibid). As a general rule, evidentiary law is not vastly considered in this regard,
by either the legislation or the parties, given the fact that one of the main features of arbitration
relies on its flexibility and the possibility to avoid over-strict rules of proceedings. Thus,
arbitrators practising their functions usually decide on the main evidence and proof matters,
such as exclusion and admissibility, without specific or clear rules. In addition, they must
establish a procedure for the gathering of evidence, which might or might not be similar to a
disclosure process in formal litigation. Finally, they must weigh up and assess all the evidence
at their disposal to make the final decision.

As part of the aforementioned process, the arbitrator must deal with more abstract rules of
evidence. In doing so, he/she will have to apply rules for bearing the burden of proof, and, as
a consequence, the rules of the standard, to determine whether the burden has been discharged.
It is neither our purpose to argue that the arbitrator should apply the rules of burden and
standard contained in the law, nor to suggest that he/she should use, necessarily, rules
equivalent to those that the civil court would use when hearing the case. Nonetheless, inside
the adjudicative process, it seems to be unavoidable for epistemological reasons — as part of
the decision-making process — that the adjudicator will assign a burden to one of the parties
and apply a given standard, although he/she may not explicitly mention it (Scheinman, 1977).
Otherwise, the arbitrator could not arrive at a rational conclusion regarding the veracity of the
facts proposed by the parties, to subsequently apply the proper law to those facts.

Nevertheless, we believe that the application of the standard of proof is independent of the
possibility of applying the rules of burden of proof in the event that we are not before a plaintiff
and defendant. In this type of case, the judge will also have to make a decision regarding a
certain narrative, and therefore, background information will be introduced into the process in
order to prove it. Taruffo (2008) has pointed out that there is no real subjective burden of proof.
Hence, a decision must be made and an evidentiary standard applied.

The domestic arbitration process, governed by AA1996, entrusts the arbitrator with significant
powers to deal with the proceeding and evidence. Some scholars define the arbitrator as the
“master of his own procedure” (St. John Sutton, 2015: 242). Yet, the arbitrator’s powers can
always be restricted and the rules shifted by agreements between the parties involved, as stated
both in subsection 34 of AA1996, which declares that: “It shall be for the tribunal to decide all
procedural and evidential matters, subject to the right of the parties to agree any matter”; and
letter f) of the rule, which adds: “whether to apply strict rules of evidence as to the
admissibility, relevance or weight of any material (,,,)”***. This approach, as Russell notes, was
taken while the Act was being passed and it was decided to exclude formal and sophisticated

‡‡ In Re B (Children) (Care proceedings: Standard of Proof) [2009] 1 AC 11

§§ Re S-B (Children) (Care proceedings: Standard of proof) [2010] 1 AC 278, SC.
*** Arbitration Act 1996 s.34(2)(f).

5
 doctrines of evidence law in order to facilitate arbitration (St. John Sutton, 2015), unless they
are expressly introduced by the parties. Otherwise, they fall into the scope of the arbitrator’s
powers, as established by s.34(2)(f). The Courts have adopted a rather broad approach to
evidence in arbitration, limiting their intervention to the application of s. 68 of the Act, and
thus confirming the approach outlined by the statute , which entrusts arbitrators with the duty
of control of evidence and proceedings†††. As a general rule, with the exception of a major
breach of the duties of the arbitrator, which would constitute a serious irregularity, the Court
has declared consistently that arbitrators should “rule their own evidence”.‡‡‡

In comparative jurisdictions, a more court-like approach has been taken. The American
Arbitration Association has introduced a very similar rule in its rules for Commercial
Arbitration, which states that "The arbitrator shall determine the admissibility, relevance, and
materiality of the evidence offered and may exclude evidence deemed by the arbitrator to be
cumulative or irrelevant".§§§ As an illustrative comparison, within international arbitration,
there are no such clear rules for the gathering and assessment of evidence, mainly due to the
influence of the different legal traditions taken into account when drafting the international
instruments of arbitration tribunals (Pietrowski, 2006). Nonetheless, some main principles
have been established to provide some basic ruling in the arbitration process, regardless of the
jurisdiction where the arbitration has its seat. These principles tend to permit, as a general rule,
a relative freedom to the parties to submit any kind of evidence they consider necessary to
support their case, and a wide discretionary power to the arbitrator to assess that evidence.
Furthermore, arbitrators do not face strict rules of admissibility and the allocation of the burden
of proof necessary for the verification of their respective cases (ibid).

Notwithstanding the above, some scholars have argued that the differences between Common
Law and Civil Law traditions engender some material disparities in arbitral proceedings.
Indeed, although the rules might be the same, the legal background of the arbitrator, the
counsels and the seat of the arbitration will undoubtedly affect the application of evidence
rules. Furthermore, the inquisitorial and/or adversarial-like approach of the arbitrator can have
an impact on proceedings (Blackaby, 2015).

Considering this, some international efforts have been made to provide a more unified legal
framework for arbitration. Thus, the UNCITRAL model regulation has established the
possibility to use strict rules of evidence, but always enables the arbitrator to apply them in
his/her own way, as stated in Article 27, 4.**** A similar rule can be found in the IBA Rules
for Evidence in International Arbitration.††††

V. Arbitration and Standard of Proof

Having provided a brief introduction to the issues arising from evidence in arbitration, this
essay will now analyse the role that the standard of proof plays. As mentioned above, in

††† A v B [2017] EWHC 596 (Comm); Statoil v Sonatrach [2014] EWHC 875 (Comm).
‡‡‡ “Section 68 did not allow for a challenge to an arbitration award on the basis of the tribunal's view of
the evidence, the weight it accorded to any evidence, its findings of fact or its conclusions of law”. New
Age Alzarooni 2 Limited, Black Gold Kalakan Limited v Range Energy Natural Resources Inc. [2014]
EWHC 4358 (Comm) at 14. Lesotho Highlands Development Authority v Impregilo SpA [2005] UKHL 43.
§§§ AAA Rules, R.31 'Evidence': (b).
**** UNCITRAL Article 27 Number 4 “The arbitral tribunal shall determine the admissibility, relevance,

materiality and weight of the evidence offered”.

†††† International Bar Association Rules on the Taking of Evidence in international Arbitration. Article 9.

Admissibility and Assessment of Evidence 1. “The Arbitral Tribunal shall determine the admissibility,
relevance, materiality and weight of evidence”.
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general, arbitrators do not specify the evidence rules they consider in their adjudicative
processes. Moreover, although the rules establish that it is up to the parties involved to propose
the principles or rules that are going to govern the arbitration proceedings, this agreement can
be very hard to execute. This is particularly relevant in complex cases with parties that present
an extremely adversarial approach to arbitration, unless some rules related to the proceedings
and the evidence are incorporated into the arbitration agreement (St. John Sutton, 2015). Yet,
that level of specification is hardly seen in the agreements and it is rather common to see parties
coming to hearings without any clear idea of the proceeding they may like to be implemented
(Goske, 1959). The above, in accordance with the minimum guarantees of a trial, is decisive,
considering that the evidentiary process and, especially, the rules regarding the final resolution,
allow the parties to control the judge's decision.

AA1996 does not mention any specific standard rule under s.34(2) of the Act. The power to
decide rests in the hands of the arbitrator. In this context, it is well known that the arbitrator will
be influenced by his/her legal background and training, being tempted to apply a similar rule in
court (Pietrowski, 2006). This is particularly the case if, as is common in England, the arbitrator
is a retired judge or an experienced barrister (Sanders, 1999; Atlas et.al, 2003). In accordance,
an English arbitrator will tend to apply roughly analogous rules to the common standard for civil
and commercial cases within the English Civil Justice system (Beck, 1949), which, as noted,
consists of a balance of probabilities (Pietrowski, 2006), even though he/she might have been
appointed for the resolution of a dispute that does not involve English parties, who are not so
familiar with that standard. Thus, in international arbitration, the tendency to apply the standard
of civil evidence, despite the matter involved, leaves open the question of whether, within an
arbitration procedure, the type of conflict submitted should be distinguished independently of
whether or not it is an arbitration procedure.

It is commonly argued that one of the most significant features of arbitration is the flexibility
that it provides, compared with formal civil litigation. It could be said that arbitrators have an
opportunity to extend that flexibility in connection with the standard of proof. Hence, the
arbitrator — who is not compelled by the court´s precedent in this regard (Roberts and Palmers,
2005) — could move the standard of proof away from the rigidness of Civil Justice
adjudication.

Consequently, arbitrators could use a higher or lower standard than the court, depending on
the complexity and sensitivity of the allegations and the seriousness of the allegations against
the grievant (Scheinman, 1977), e.g. fraud and criminal conduct, which have been debated in
the court, and from which conclusions have been already examined early on this article.
Therefore, in some cases, e.g., where the burden of proof is not clearly assigned, its discharge
might be met with a lower quantum of proof, or, on the contrary, the threshold could be risen.

a) A higher standard. In other jurisdictions, particularly in the U.S., civil and commercial
cases deal with more than one monolithic standard. Civil litigation has developed an
intermediate standard that stands in the middle between the criminal yardstick of beyond any
reasonable doubt (Scheinman, 1977) and the classic civil standard of fair preponderance or
preponderance of the evidence (balance of probabilities in the U.K).

This intermediate level of persuasion is known as clear and convincing evidence and stands
right between the factors of 0.5 and 1 (White, 1977). Arbitration has seen a great development
of this debate, particularly in cases where a commercial, civil or labour dispute involves
conduct that is considered to constitute a criminal or disciplinary offence. Moreover, in arbitral
7
disputes litigated between employers and Unions, where the discharge of an employee is the
main issue, it has been suggested that the relevance of the issue at stake is so high — a sort of
maximum penalty in labour law called economic capital punishment — that it entails the
necessity for the arbitrator to elevate the standard of proof above preponderance of evidence,
even to the limit of beyond any reasonable doubt (Beck, 1949). This is evidenced in a case of
discrimination or in one of asymmetry between parties.

b) A Lower Standard. The question laid out allows us to explore the possibility of whether
an arbitrator could go lower than the balance of probabilities standard. As mentioned, the
arbitrator will indefectibly use a standard of proof to determine whether a factual proposition
is proven or not, if he/she is convinced enough about the occurrence of an event, as proposed
by one of the parties. In that exercise, he/she can estimate that none of the propositions goes
as far as required by the civil standard — none of them goes up to 0.5 — yet still one of them
has more credibility than the other. Let us say, for the sake of this argument, 0.4 against 0.3.
In such a scenario, the standard proposed has been described as 'substantial evidence' standard
48, mostly utilized in administrative processes in the U.S. (Stason, 1941). Under a civil
litigation scheme, the decision should go against the person who bears the burden of proof —
the claimant as a general rule —, but in arbitration the award could reach a diametrically
opposite conclusion. An example of the above would be as follows: in a commercial case where
part A claims the breach of contract of part B. B, while stating that there was no contract, due
to a lack of consent. Under strict standard of proof rules, as would have been applied in court,
the burden of proof concerning the mere existence of the contract — whose breach is alleged
— rests in the hands of the claimant. The plaintiff, under the balance of probabilities, will need
0.5+1 of the probabilities to meet the standard and discharge the burden of proof for the
commented fact. If the claimant provides evidence, yet not to the extent to meet the standard
— let us say 0.4 of the probabilities — then it would fail to sustain an essential proposition of
fact to the case: the existence of the contract. Therefore, the claim will be dismissed and the
defendant will prevail. On the contrary, if the standard can be placed below the balance of
probabilities and the evidence provided for the defendant in the same case is assessed by the
arbitrator as weaker than the one put forward by the claimant (from 0 to 0.39 of the
probabilities), the claimant would have effectively met the standard and discharged the burden
laying over him/her, establishing, as a consequence, the veracity of the existence of the
contract, a crucial fact to support his/her case.

Although the arbitrator may not declare in the award any particular standard whereby, he/she
considers the facts of the case being proved, the standard is always there. Indeed, it is a rational
procedure, whereby the decision-maker concludes that something is likely to be true, or, at
least, more likely than the opposite hypothesis, which leads to taking the route towards the
proposed option that satisfies the barrier. The question is when to determine the standard of
proof for the special case or whether, under arbitration law, we should establish a general rule
on the standard. We think it would be more appropriate for the standard of proof to be
determined at the beginning of each arbitration, in particular, because of the asymmetries that
can occur.

VI. Relevance of the Standard applied

As stated previously, the standard for civil cases in court is the balance of probabilities. The
balance of probabilities entails a rule of an equalitarian distribution of errors between the
parties, taking into account that the cost of those errors is distributed equally between them
(Porat and Stein, 2001). Thus, the rule that establishes a standard of proof is not neutral (ibid),
from a political or a moral perspective, being, by consequence, an eminently normative
decision (Tuzet, 2019).
8
 The standard of proof, ergo, fulfils a function in the equalitarian regulation of the adjudication
process and, in doing so, carries the due process principle through the equality of arms between
the parties, providing equal grounds for both of them when facing civil litigation. A standard
that normatively distributes the probabilities on a 50% basis for each party promotes the same
prerogatives for the claimant and the defendant, allowing the process to be conducted, pursuant
to procedural fairness standards.

For its part, arbitration has been described as a mechanism that concerns an adjudicative
decision-making process, which is final and binding, in which, when taking that decision, the
adjudicator must, necessarily, use a standard of proof. Arbitration is a more flexible form of
litigation than formal justice, which means that this mechanism permits the adaptability of the
standard rules, either increasing or decreasing the threshold. With this modification, the formal
equality that a balance of probabilities standard provides to the parties could be altered in
arbitration, inclining the balance towards one of them, and away from the symmetry of its civil
justice counterpart.

Another relevant issue that might arise related to the default function of the balance of
probabilities is challenging the award. The problem relies on whether the fixation of a specific
standard could tend to increase the arbitral awards to be challenged under s. 68 and s. 69. The
response might seem unclear, yet our position is that every decision-making process involves
the use of a standard of proof. Accordingly, arbitrators use a standard when they deliver their
decision. Thus, the standard is actually being used, yet it is not clearly known which standard.
That is to say, epistemically the decision needs a quantum of proof, that often remains
uncertain. Should the standard of proof be clarified, it would not necessarily lead to more
challenges than currently. It would, however, lead to more controllable challenges, founded on
a specific normative threshold whereby the Court could review it more thoroughly.

That being said, an important question still needs to be asked: according to the contractual and
private nature of arbitration in England, should the alteration of the equality of arms to which
the parties are entitled, with regards to the standard, be allowed or not, from the perspective of
the minimum principles of due process, which, as explained, participate in arbitration?

Due process principles, as Flick (1984) describes, apply to all public decision-making
processes, either judicial or administrative. In addition, in England, the court has stated that
natural justice is applicable to any subject, public or private, acting in a quasi-judicial role,‡‡‡‡
which includes private adjudication. As Hörnle (2009: 98) points out: “rules of natural justice
not only apply to public bodies or bodies exercising a public function but also to arbitration”.
Furthermore, in section 33§§§§ the AA1996 acknowledges the necessity and applicability of
procedural fairness to an extent that is not very common in arbitration enactments, a feature
that Carbonneau refers to as a “concise and compelling description of the purpose and rationale

‡‡‡‡ Wood v. Woad (1874) LR 9 Ex 190; R (Irvine) v. The Royal Burgess Golfing Society of Edinburgh
[2004] LLR 334 (Court of Session), para. 25.
§§§§ AA1996: Subsection 33: General duty of the tribunal.

(1)The tribunal shall—

(a)act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting
his case and dealing with that of his opponent, and
(b)adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or
expense, so as to provide a fair means for the resolution of the matters falling to be determined.
(2)The tribunal shall comply with that general duty in conducting the arbitral proceedings, in its decisions
on matters of procedure and evidence and in the exercise of all other powers conferred on it.
9
 of arbitration” (Carbonneau, 1998: 146). The act enshrines what it denominates a “general
duty” to the arbitrator, a concept that includes an order to "act fairly and impartially" and give
each party "a reasonable opportunity" to present its case and to respond to the opponent*****.
Moreover, the aforementioned section 33 must be observed in accordance and correlation with
section 1 of the Act and, particularly, with section 68, that allows the challenge of the award
on the basis of a “serious irregularity”, which explicitly incorporates “(a)failure by the tribunal
to comply with subection 33 (general duty of tribunal)”.

Some scholars have gone as far as to say that due process must be applied to arbitration to the
same extent as in civil litigation, arguing that arbitration cannot avoid the applicability of
article 6 of the ECHR (Jaksic, 2007). Yet, other experts have stated that the applicability of
due process is direct only in cases of compulsory arbitration, where the state, through statute,
might be delegating a public function in private hands (ibid:103). The extent of this application
remains unclear, yet the more basic principles seem to be the starting point: a sort of
“measured” due process in arbitration
59 (Brunet, 1992). In this regard, the minimum principles
that should apply are those embracing what Andrews denominates to be a “fair process”
(Andrews, 2013: 687), including a “fair hearing” which comprehends the right to equality of
arms, the right for an equal exhibition of evidence, and equal access to information.†††††
Additionally, other basic principles that should be applicable are judicial independence and
impartiality‡‡‡‡‡.

This discussion becomes even more relevant when arbitration is mandatory. In these cases,
parties are obligated to enter into arbitration, although they might not consider this to be the
best option to resolve that particular dispute. Consequently, they will solve their differences
through the utilization of rules that are — or at least could be — unknown to them, and to
which they remain oblivious. The risk arises especially in cases of unrepresented parties, where
the arbitration is conducted without counsel advice, or in self-representation situations, where
the procedural fairness guarantees rely almost exclusively upon the arbitrator’s criteria. The
scenario becomes even more complex when there is a marked asymmetric relationship between
the involved parties, e.g. labour law disputes. This lack of balance in the negotiation power
can be reflected in knowledge of the rules to be accorded or proposed before the arbitrator, or
worse, in the mere fact of forcing the execution of the arbitration agreement, taking advantage
of the fear of the weak party towards civil litigation delays and expenses (Hill, 2003), thus
affecting the equality of arms through a breach in equal access to information.

If the arbitrator does not establish an objective and fixed standard of proof in the evidence rules
prior to the commencement of the proceedings — or to the gathering of the evidence stage at
the most — the parties would have to face the uncertainty of the limit that their propositions
of fact would have to overcome (Andrews, 2013). Moreover, this uncertainty might depend
on, or increase due to, the depth of the regulation regarding disclosure the parties had or had
not agreed to during the arbitration process. Thus, as regards the importance of disclosure to
the proceeding, if the parties have drafted an agreement that includes at least a certain type of
*****
AA1996: Subsection 33
††††† The link between due process and arbitration has been recognised by the Court, specifically regarding
evidence issues, where the test for fairness has been settled: “no one with judicial responsibility (such as
the arbitrator) may receive evidence, documentary or otherwise, from one party without the other party
knowing that the evidence is being tendered (...) no custom practice may override that basis principle”.
Ceylon v. Chandris [1963] 1 Lloyd's Rep. 214, 225-26. “T's conduct in contacting the witnesses directly
and failing to inform the parties that he had done so constituted a failure to conduct the proceedings
properly and caused substantial injustice to the parties”. Norbrook Laboratories Ltd v Tank [2006] 2 Lloyd's
Rep. 485.
‡‡‡‡‡ Ceylon v. Chandris [1965] 3 All E.R. 48. |

10
disclosure-like evidence stage, it would be more likely for them to prepare and foresee
evidence-related issues, being aware of the standard of proof. Additionally, they would provide
more proof, particularly documents, for the arbitrator to arrive to a factual decision that
overcomes the threshold fixed by balance of probabilities. Conversely, when the parties have
remained silent on the issue of disclosure, experience shows that the arbitration would try to
avoid over-structured evidence proceedings, such as disclosure or discovery (Guys, 2018), and
consequently increase the uncertainty due to the doubt the parties might engender, including
the standard of proof.

Furthermore, a risk of critical imbalance could arise if the arbitrator additionally uses a variable
standard, depending on the seriousness of the allegation. For example, in medical negligence
claims, the arbitrator may understand that the proof of the negligent behaviour of the medic
requires a standard of proof above the 0.5 mark, and move it very close to the criminal standard
of beyond any reasonable doubt, forcing the claimant to exceed a very high barrier. Conversely,
if the arbitrator decides that the standard of proof for the same facts should be fixed under 0.5,
the claimant would solely need to be more convincing than the defendant to obtain a favourable
award, leaving the latter in a worse position, as a consequence of diminishing the threshold.
The situation in this example could lead to even more complex consequences. As Grando
(2009: 129) suggests, a lower standard of proof could lead to bias towards claimants, affecting
the impartiality of the system. Claimants file their cases first and, very commonly, their
evidence. Therefore, if the standard is set very low, the arbitrator could be easily convinced
and, eventually, transfer the burden of proof to the defendant (ibid). The aforementioned would
contribute to a major breach in the essential rights of the parties in arbitration, even if
considered as a private matter, because one of the parties would be dealing with an
unforeseeable lack of impartiality that could not have been waived. Finally, a very low standard
could lead, as Porat and Stein (2001) correctly argue, to the risk of aleatory results, making
arbitration more closely resemble gambling than civil litigation.

For the authors of this essay, if the standard of proof, as an important aspect of evidence
matters, can be located among due process guarantees and due process applied to arbitration
— although to a limited extent — then civil standard of proof rules should apply, in the absence
of an agreement between the parties, as a non-mandatory guidance for the arbitrator, as part of
a suppletory minimal due process framework.

VII. Conclusions

Throughout this essay, we have revised the nature of the standard of proof, its function in the
decision-making process, and its application to civil litigation. Additionally, we have explained
the standard of proof in civil justice, and dealt with the application of more flexible standards.
Subsequently, we have investigated the applicability of the standard of proof in arbitration,
making the statement that it does apply, as it does in any decision-making process. We have
described which standard could be applied by the arbitrator pursuant to the contractual nature
of this dispute-solving method, and the relevance of that distinction. In addition, we have
highlighted the role of the equality of arms and other principles of due process that, as
explained, must be taken into account in arbitration, due to its adversarial, adjudicative and
quasi-judicial scheme. Accordingly, the standard of proof used by arbitrators in England and
Wales under AA1996 should be addressed as follows:

As the main rule of arbitration, the parties should have control over the proceedings and
evidence rules. This remains as the general rule enshrined in AA1996 s.34(2), as arbitration
has a predominantly private nature, and this rule maintains the supremacy of the Party
Autonomy Principle. The parties should be free to agree to any standard, including standards
11
 that are not expressly recognized in domestic law and that may be higher or lower than the
balance of probabilities.

Being aware that the agreements mentioned above are scarcely used, the focus should be fixed,
where the parties do not expound any preference related to proceeding rules. In this context,
the arbitrator should use the authority delegated by AA1996, to establish the evidence rules.
The arbitrator should propose and determine the standard to be used to consider the burden of
proof discharged, before any proceedings hav e commenced, and should not change it
throughout any stage of the process, ideally in absence of an agreement with the parties. The
proposed standard should be the balance of probabilities, whereby the risk of errors and
possibilities of success are allocated equally between the litigants. In accordance with that, we
indicate that the default function of balance of probabilities should be understood as a
consequence of the symmetrical position of the parties to the arbitration, and in doing so
arbitration schemes, whether domestic or international, should transit to the enshrining of this
rule. On a domestic basis, the rule could be delivered by Courts when revising arbitration cases,
as well as Arbitration Centres’ guidelines. Internationally, it will depend on the legal traditions
and background of each jurisdiction regarding arbitration. Thus, it could be enacted, for those
countries with a rigid legalistic tradition, or case law constructed or suggested in more common
law-like legal backgrounds. Nevertheless, in an effort for unification, the international
conventions, as de UNCITRAL Model Law, could endorse its inclusion as a method of setting
the ground for some of the most relevant evidence issues of arbitration.

Therefore, regarding the English domestic arbitration, considering that many parties select
England as an arbitration destination for its flexibility enacted -and as a well-known incentive
in order to facilitate arbitration- in AA1996 the solution provided by the authors relied on a
twofold possibility. Firstly, as aforementioned earlier, through a case law doctrine regarding the
establishment of a default rule of standard of proof in arbitration. Notwithstanding the fact that
this would be the more appropriate approach, the limited number of challenges to arbitral awards
could lead to a slow improvement, especially considering the non-binding effect of Courts
decision to consequent arbitral decision. On the second hand, and in a attempt to tackle the
difficulties of a case law based solution, an amendment to AA1996 could be introduced, in order
to provide a suppletory framework for evidence issues, as standard of proof, yet always
considered as a non-mandatory rule, subject to parties and arbitral modifications according to
the general rules of the Act. Same result could be achieved enacting a provision encouraging a
more detailed agreement towards evidence matters on the very first stage of arbitration. Thus,
through a limited scope modification, the necessity of a default rule of standard of proof will be
compatible and would not trump the original ethos of the Act, namely, to attract domestic and
international arbitration work,

Moreover, we think that the decision about the standard of proof should be taken as part of a
wider set of rules, including the explicit mention of the principles of due process to be
considered in the arbitration. Notwithstanding that the basic principles of due process should
always be applicable to arbitration, the express mention of them would provide clarifying
guidance for the relevant parties, which is particularly significant in cases that involve litigation
between private entities.

References

1. Allen R, Stein A (2013) Evidence, probability and the burden of proof. Arizona Law
Review, 55, 557-561.
2. Andrews N (2013) Andrews on Civil Processes. London: Intersentia.

12
3. Atlas N et. al (2003) Alternative Dispute Resolution: The litigator´s handbook. U.S.A.:
American Bar Association.
4. Beck K (1949) Evidence, burden and quantum of proof. Washington University Law
Review, 1, 85.
5. Blackaby N (2015) Redfern and Hunter on international arbitration. Oxford: Oxford
University Press.
6. Bourne G (2009) International Commercial Arbitration. The Netherlands. Kluwer
International.
7. Brunet E (1992) Arbitration and constitutional rights. North Carolina Law Review, 71,
81.
8. Carbonneau T (1998) A Comment on the 1996 United Kingdom Arbitration Act, Tul.
Mar. L.J. 22,131.
9. Choo A (2015) Evidence. 2015: Oxford University Press.
10. Emerson F (1970). History of arbitration practice and law. Cleveland State Law Review,
19, 155-156.
11. Flick G (1984) Natural Justice Principles and Practical Application. Australia: LexisNexis
Butterworths.
12. Gorske R (1959) Burden of proof in grievance arbitration. Marquette Law Review, 43,
135.
13. Grando S (2009) Evidence, proof, and fact-finding in WTO dispute Settlement. Oxford:
Oxford University Press.
14. Gusy M (2018) Saving Time and Cost International Arbitration without Hearing on the
Merits. ZDAR: Zeitschrift fur Deutsches und Amerikanisches Recht, 41, 36-38.
15. Haack S (2014) Evidence Matters: Science, proof and truth in the law. Cambridge:
Cambridge University Press.
16. Hannibal M, Moutford L (2002) The law of criminal and civil evidence: principles and
practice. UK: Pearson Education Limited.
17. Hill E (2003) Due process at low cost: an empirical study of employment arbitration under
the auspices of the American Arbitration Association. Ohio State Journal of Dispute
Resolution, 18, 803.
18. Hörnle J (2009) Cross-border internet dispute resolution. Cambridge: Cambridge
University Press.
19. Jaksic A (2007) Procedural Guarantees of Human Rights in Arbitration Proceedings.
Journal of International Arbitration, 24, 159.
20. Keane A Mckeown P (2012) The modern law of evidence. Oxford: Oxford University
Press.
21. Laudan L (2006) Truth, error and criminal law: an essay in legal epistemology.
Cambridge: Cambridge University Press
22. Lawson G (2017) Evidence of the law. Chicago: University of Chicago Press.
23. Murphy P (2008) Murphy of evidence. Oxford: Oxford University Press.
24. Park W (2011) The Four Musketeers of Arbitral Duty: Neither One-For-All Nor All-For
One. International Chamber of Commerce Dossiers, 25-45.
25. Paulsson J (2010) Arbitration in three dimensions. LSE Society, Economy Working
Papers, 60, 291-323.
26. Pietrowski R (2006) Evidence in international arbitration. Arbitration International, 22,
373.
27. Porat A, Stein A (2001) Tort Liability under uncertainty. Oxford: Oxford University
Press.
28. Roberts P, Zuckerman A (2010) Criminal Evidence. Oxford: Oxford University Press.
29. Roberts S, Palmers M (2005) Dispute Processes, ADR and the primary forms of decision
- making. Cambridge: Cambridge University Press.
30. Sanders P (1999) Quo Vadis Arbitration?: Sixty years of arbitration practice- A
comparative study. The Hague: Kluwer Law International.
13
31. Scheinman M (1977) Evidence and proof in arbitration. U.S.A.: Cornell University Press.
32. Stason E (1941) Substantial Evidence in Administrative Law. University of Pennsylvania
Law Review and American Law Register, 89, 1026.
33. St John Sutton D (2015) Russell on Arbitration. London: Sweet and Maxwell.
34. Taruffo M (2008) La prueba. Madrid: Editorial Marcial Pons.
35. Tuzet G (2018) Assessment Criteria or Standards of Proof? An Effort in Clarification.
Artificial Intelligence and Law.
36. Twining W (1993) Alternative to what? Theories of litigation, procedure and dispute
settlement in angloamerican jurisprudence: some neglected classics. The modern law
review, 56, 380.
37. White M (1977) Dependency Proceedings: what standard of proof -an argument against
the standard of clear and convincing. San Diego Law Review, 14, 1155.
38. Zuckerman A (2013) Zuckerman on civil procedure principles of practice. UK: Sweet and
Maxwell.

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