The Development And Consummation Of The Civil And Commercial Arbitration Evidential Rule In Socialist Marketing Economy--And The Relationship Between Parties Producing Evidence And The Arbitration Tribunal Investigating And Verifying

At present, one of the points at issue in the study and practice as to the burden of proof in the arbitration law is about the relationship between parties producing evidence in support of the facts on which their claim, defense or counterclaim is based and the arbitration tribunal undertaking investigations and collecting evidence on its own initiative .which has been provided in the 43rd article by the "Arbitration Law of the People' s Republic of China" . In the writer' s view, such provisions should be confined to a limited scope. During a civil and commercial arbi tration , according to the burden of proof which he undertakes, each party should try his best to produce evidence as well as take the disadvantageous arbitral award when the fact in issue still can not be confirmed even he has produced all the necessary evidence . Meanwhile, the rights of the arbitration tribunal as to undertaking investigations and collecting evidence should lie confined . Therefore, it must be made clear about the position of the arbitration tribunal andthe scope and procedure of the investigations and evidence collection undertook by the arbitration tribunal must be standardized . As the consummation of the social ist marketing economy system, the evidence rule should be correctly applied to direct the civil and commercial arbitration practice, each party' s burden of proof should be reasonably distributed, the direct relation between parties producing evidence and the arbitral award should be intensified , and the system of the parties producing evidence should be ensured , therefore, the system of the burden of proof can give its full play.