Original Article

The International Journal of

Evidence & Proof
A comparison between the 1–13
ª The Author(s) 2020
standard of proof applicable Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1365712720943333
in arbitration and journals.sagepub.com/home/epj

formal adjudication

Jesus Ezurmendia
Universidad de Chile Facultad de Derecho, Región Metropolitana, Chile

Maria de los Angeles Gonzalez

Universidad de Chile Facultad de Derecho, Región Metropolitana, Chile

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 as 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 Arbitration Act 1996. The
arbitrator shall establish these aspects at the beginning of the process, considering also the
rules of burden of proof.

Keywords
arbitration, dispute resolution, evidence law, standard of proof

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 US in the
1970s, and is currently being successfully implemented throughout almost every known jurisdiction with
a relatively modern justice system (Twining, 1993). 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.

Corresponding author:
Jesus Ezurmendia, Universidad de Chile Facultad de Derecho, Pı́o Nono 1, Providencia, Región Metropolitana, Santiago 750000,
Chile.
E-mail: jezurmendia@derecho.uchile.cl
2 The International Journal of Evidence & Proof XX(X)

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 (Born, 2009:
1542). The reasons for the popularity of arbitration are its intrinsic procedural qualities, including
freedom, de-legalisation and demystification, together with advantages over national jurisdiction,
including speed, confidentiality, specialisation, 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 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, s. 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. First, 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: 26–27).
Ezurmendia and Gonzalez 3

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 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.

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’.1 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 conceptualised 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.2

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 recognise 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 (Laudan,
2006). In this order of things, the evidentiary standard will be used, 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

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

2. Re B (children) [2009] AC 11, quoting from In Re Winship 397 US 358, 370 (1970).
4 The International Journal of Evidence & Proof XX(X)

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 rea-
sonable doubt (Zuckerman, 2013). The latter has been established for criminal cases, where the scale of
persuasion is nearly 1, whereas the former is utilised 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 exercis-
ing 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 (Laudan, 2006: 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.

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 Pensions3 (which highlighted that the standard is met when ‘we think it is
more probable than not’ (Hannibal and Mountford, 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),4 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 criticised, 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 Mountford, 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 rea-
sonable doubt, as stated by the Court of Appeal in Dean v Dean.5
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 Mountford, 2002).

3. [1947] 2 All ER 372.

4. [1996] AC 563.
5. [1987] 1 FLR 517.
Ezurmendia and Gonzalez 5

In the case that a civil proceeding deals with conduct that could lead to criminal offences, such 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)6 and confirmed by the Supreme
Court in Re S-B (Children) (Care Proceedings: Standard of Proof).7 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.

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 (Brunet, 1992). 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 not our purpose to argue
that the arbitrator should apply the rules of burden and standard contained in the law, or 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 s. 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 . . . ’8. This approach, as
Russell notes, was taken while the Act was being passed and it was decided to exclude formal and
sophisticated 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

6. [2009] 1 AC 11
7. [2010] 1 AC 278, SC.
8. Arbitration Act 1996, s. 34(2)(f).
6 The International Journal of Evidence & Proof XX(X)

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.9 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’.10
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’.11 As an illustrative
comparison, within international arbitration, there are no such clear rules for the gathering and assess-
ment 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 verifica-
tion of their respective cases (Pietrowski, 2006).
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 frame-
work 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, 4.12 A similar rule can be found in the IBA Rules for Evidence in International Arbitration.13

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 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

9. A v B [2017] EWHC 596 (Comm); Statoil v Sonatrach [2014] EWHC 875 (Comm).
10. ‘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.
11. AAA Rules, R.31 ‘Evidence’: (b).
12. UNCITRAL Article 27 Number 4 ‘The arbitral tribunal shall determine the admissibility, relevance, materiality and weight of
the evidence offered’.
13. 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’.
Ezurmendia and Gonzalez 7

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 (Atlas et al., 2003; Sanders, 1999). 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 higher standard
In other jurisdictions, particularly in the US, 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 prob-
abilities in the UK).
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 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.

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
8 The International Journal of Evidence & Proof XX(X)

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 utilised in administrative processes in the US (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 conclu-
sion. An example of the above would be as follows: consider a commercial case where party A claims
a breach of contract by party B, while party B states 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 con-
siders 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 appro-
priate for the standard of proof to be determined at the beginning of each arbitration, in particular,
because of the asymmetries that can occur.

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 (Porat and Stein,
2001), from a political or a moral perspective, being, by consequence, an eminently normative
decision (Tuzet, 2019).
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 norma-
tively 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
Ezurmendia and Gonzalez 9

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, which 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 regard 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,14 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 s. 3315 the AA1996 acknowl-
edges 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 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 opponent16. Moreover, the
aforementioned s. 33 must be observed in accordance and correlation with s. 1 of the Act and, partic-
ularly, with s. 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 s. 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). However, 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 (Jaksic, 2007: 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 (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

14. 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.
15. AA1996, s. 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.
16. AA1996, s. 33.
10 The International Journal of Evidence & Proof XX(X)

information.17 Additionally, other basic principles that should be applicable are judicial independence
and impartiality18.
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 utilisation 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 asym-
metric 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 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 (Grando, 2009). 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

17. 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, 225–226. ‘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.
18. Ceylon v Chandris [1965] 3 All ER 48.
Ezurmendia and Gonzalez 11

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.

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 that are not expressly recognised 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 have 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 under-
stood 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 Arbitra-
tion 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. Neverthe-
less, in an effort towards unification, the international conventions, as the 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 English domestic arbitration, considering that many parties select England as an
arbitration destination for its flexibility as 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. First, 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. Sec-
ondly, and in a attempt to tackle the difficulties of a case law-based solution, an amendment to AA1996
12 The International Journal of Evidence & Proof XX(X)

could be introduced, in order to provide a supplementary framework for evidence issues such 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. The same result could be achieved by enacting a provision
encouraging a more detailed agreement on evidence matters at the very first stage of arbitration. Thus,
through a limited scope modification, the necessity of a default rule of standard of proof would be
compatible and would not trump the original ethos of the Act, namely, to attract domestic and interna-
tional 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 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.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication
of this article.

Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD
Jesus Ezurmendia https://orcid.org/0000-0002-0616-2823

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