Innovations in Mass Claims Dispute Resolution: Using New Standards of Proof
van Haersolte-van Hof, Jacomijn J., Dispute Resolution Journal
The author is an attorney at De Brauw Blackstone Westbroek, in The Hague, specializing in arbitration and litigation. She previously served in different capacities on the Claims Resolution Tribunal for Dormant Account, Zurich, and the U.S./U.K. Heathrow User Charges Tribunal.
Mass-claims tribunals are characterized by large numbers of claims, large numbers of claimants, and usually, special factual circumstances triggering the claims that led to the institution of the particular mass claims tribunals. An examination of the recent practices of some of these tribunals reveals that the role of evidence in the proceedings before them has been redefined.
However, stating a rule of what has been the general practice of mass claims tribunals is not so easy to do. The excellent book Fact-Finding Before International Tribunals1 contains numerous papers on this subject, including fact finding by the International Court of justice and the Iran-U.S. Claims Tribunal, and by international human rights bodies. Generally speaking, in "normal" non-mass claims proceedings, one can say that the standard is that evidence is weighed, and a determination is made of the preponderance of the evidence. Mass claim tribunals generally apply less stringent standards of proof. Moreover, the procedure of presenting evidence is often simplified, which may permit the use of newer techniques that replace or modify the traditional forms of submitting evidence, such as electronic submissions.
This article examines how six mass claims tribunals, some of which still exist, have dealt with the standard of proof. This examination reveals that a number of tribunals say that they apply a "plausibility" standard or simply a "more relaxed" standard of proof than would normally be required in court or arbitration. However, it is crucial to emphasize that a detailed comparison of the various tribunals is not helpful because of the different circumstances in which each arose. That is not to say that a comparison is utterly pointless. But in making any general comparison, the characteristics and circumstances that shaped each tribunal must be taken into account.
The Iran-U.S. Claims Tribunal
The rules of procedure of the Iran-U.S. Claims Tribunal are largely based on the UNCI-TRAL Arbitration Rules. The only guidance on the standard of proof in the rules are Article 24 (1), which provides that "each party shall bear the burden of proving the facts relied on to support his claim or defense," and Article 25 (6), which provides that "the arbitral tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered." However, Article 15 emphasizes the discretion of the tribunal to "conduct the arbitration in such manner as it considers appropriate"; it further provides that the parties should be treated with equality and "that at any stage of the proceedings each party is given a full opportunity of presenting its case."
In practice, the Iran-U.S. Claims Tribunal has exercised its discretion by using the traditional "preponderance of the evidence" yardstick, instead of a more relaxed standard of proof. In some cases, the Tribunal has taken an active role in investigating the facts. This was the case, for example, in relation to issues of jurisdiction.2 At times, the Tribunal has allowed a simplified presentation of evidence, such as by accepting and relying upon reports and summaries provided by certified public accountants.3 It has also allowed the filling of gaps in evidence by drawing inferences.4 Indeed, it has applied the technique of drawing adverse inferences under the following rule: "When a party ... has access to relevant evidence, the tribunal is authorized to draw adverse inferences from the failure of that party to produce such evidence."5 A necessary predicate for an adverse inference is the Tribunal's "reasonable certainty" that the party against whom the inference is to be drawn has possession of, or access to, the missing evidence. …