A comparison between the standard of proof applicable in arbitration and formal adjudication

DOI10.1177/1365712720943333
Published date01 January 2021
Date01 January 2021
Subject MatterArticles
Article
A comparison between the
standard of proof applicable
in arbitration and
formal adjudication
Jesus Ezurmendia
Universidad de Chile Facultad de Derecho, Regi´
on Metropolitana, Chile
Maria de los Angeles Gonzalez
Universidad de Chile Facultad de Derecho, Regi´
on 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, P´
ıo Nono 1, Providencia, Regi´
on Metropolitana, Santiago 750000,
Chile.
E-mail: jezurmendia@derecho.uchile.cl
The International Journalof
Evidence & Proof
2021, Vol. 25(1) 3–15
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1365712720943333
journals.sagepub.com/home/epj

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