Document Type : Original Article
Author
University of Tehran, Faculty of Law and Political Science
Abstract
Arbitral tribunals in corruption-related cases often face complex and unique circumstances that significantly complicate the pursuit of truth and the issuance of a fair award. One of the critical issues in this context is determining the burden of proof—specifically, which party is responsible for proving the allegations. This issue becomes particularly important in corruption cases, which are often characterized by their hidden and intricate nature.
According to the principle "the burden of proof lies with the claimant," the responsibility for proving the occurrence of corruption generally rests on the party making the allegation. However, some modern approaches in investment arbitration advocate for shifting the burden of proof to the respondent in specific instances. In such cases, the legal burden of proof remains with the claimant, but the respondent may be required to provide further evidence to rebut the allegations. This transfer mechanism can help ensure balance and equality between the parties before the arbitral tribunal and contribute to the fair resolution of disputes. Under this approach, if initial evidence of corruption is presented that creates reasonable doubt in the minds of the arbitrators, the burden of providing additional evidence to refute the allegations shifts to the accused party.
The arbitral tribunals choose different standards and thresholds for establishing corruption based on the nature of each case and the evidence presented. This selection directly affects the tribunal's approach to case management and plays a vital role in ensuring transparency and justice in international arbitration.
Keywords
)