The Burden Of Proof In The Arbitrations Of International Investment Deputes

This article includes three major parts. The first part is a brief introduction of the nomal principles for onus probandi in civil actions in both civil law countries and common law countries. After the discussion of the particularity and the value orientation of the assignment of the onus probandi in the settlements of international investment disputes the union international investment, we analyze the characteristic of the assignment of onus probandi in the settlements of international investment disputes. The second part of the article analyzes the assignment of onus probandi in the "International Center for Settlement of Investment Disputes" (ICSID) in detail. Through the analyzing of its background of its establishment and its characteristic in the settlements of international investment, we analyze the characteristic it should contain in the assignment of onus probandi. Then through the analyzing of its judicial precedent, we analyze the same thing as well as the arbitrators' voluntariness in their collecting of evidence in real cases. The third part illustrates the defects and perfection of the assignment of onus probandi in ICSID. Through the analyzing of the assignment of onus probandi in "the center", we insist that, lacking for strict rules, it contains too much uncertainty. Moreover, neither the ICSID Convention nor the ICSID Regulations and Rules contains a sigle article which clearly assigns the onus probandi, pionts out the conditions that can release a party's onus probandi, or the conditions that a arbitrator can collect the evidence voluntarily. Thus it results in the overrun of the arbitrators' discretion. Because of the arbitrator inclination to developed countries of the most arbitrators of ICSID, the overrun discretion seems to be an extremely disadvantage to the developing countries. In consideration of maintaining the authority of "the center", as well as the benefits of developing countries, we suggest "the center" make a detail rule to assigns the onus probandi, pionts out the conditions that can release a party's onus probandi, and the conditions that a arbitrator can collect the evidence voluntarily as soon as possible, thus constrain the overrun discretion.