Understanding the standard of proof in arbitration is fundamental for businesses; it dictates how evidence is evaluated, influencing the final decision. Ignoring or misinterpreting this crucial element can prove costly. In this ninth article of our “Understanding Arbitration: A Guide for Businesses” series, we’ll differentiate between the standard of proof in arbitration and traditional litigation. We’ll also offer actionable advice to ensure businesses present evidence with confidence and poise. By mastering this aspect, businesses can make more informed decisions and improve their chances in arbitration proceedings.

Understanding the Standard of Proof

At its simplest, the “standard of proof” sets out how compelling evidence must be for a party to prevail on a given issue. It is essential because it ensures decisions are based on credible and persuasive evidence, upholding the integrity of the arbitration award.

In the courtroom, litigation tends to lean on two primary standards: the ‘balance of probabilities’ for civil cases and ‘beyond reasonable doubt’ for criminal charges. Arbitration, however, offers a distinct approach. Unlike its litigation counterpart, arbitration provides flexibility, allowing arbitral tribunals to opt for a standard of proof best suited to the particulars of a case. This tailored approach is what many businesses find appealing. By appreciating the subtle differences between the standards of proof, parties equip themselves to present evidence more effectively.

Common Standards of Proof in Arbitration

1. Balance of Probabilities: This standard refers to the level where a particular claim or fact is more likely true than not. The evidence should slightly tip the scale in favour of one party, demonstrating that their claim is more probable. It doesn’t imply absolute certainty but indicates a slight leaning towards the truth of the claim. It often comes into play during commercial or contractual disagreements in arbitration. 

2. Clear and Convincing Evidence: Ranking higher than the “balance of probabilities”, this standard requires that the evidence substantially supports the claim, leaving minimal room for doubt. It is rigorous but not as stringent as the “beyond reasonable doubt” standard. It comes to the fore in cases with serious allegations, such as fraud or significant contractual neglect. Given the weighty consequences of these charges, a more stringent proof standard is appropriate.

3. Beyond Reasonable Doubt: Traditionally associated with criminal trials, its presence in arbitration is limited. However, when it appears, it signifies that, based on the evidence, there is virtually no reason to dispute the claim. The “beyond reasonable doubt” standard indicates the seriousness of the allegations, especially in matters hinting at criminal undertones. Businesses should recognise the high evidentiary bar this represents and be prepared for its stringent requirements.

Factors Influencing the Standard of Proof

Building on our insights into the common standards of proof in arbitration, several factors dictate which standard is appropriate for a given case. Let’s examine these factors in more detail:

a. The Parties’ Agreement: Arbitration’s beauty lies in its adaptability. Parties can customise terms, including the standard of proof. Clarity and mutual understanding are paramount here to prevent potential disputes.

However, while parties enjoy significant flexibility in defining their arbitration agreements, certain fundamental principles remain non-negotiable. Specifically, considerations rooted in public policy stand firm, regardless of the parties’ mutual terms. Different jurisdictions uphold these principles to maintain fairness and integrity within the arbitration process. Therefore, businesses should remain aware of these mandatory aspects when drafting arbitration agreements.

b. Role of Institutional Rules: While they might not always define the standard of proof, institutional rules offer arbitrators a clear path to ensure fair evaluation of evidence. Incorporating well-established rules, such as those from the International Chamber of Commerce (ICC), can streamline the process, clarifying the standard of proof.

c. Impact of the Arbitral Seat: The chosen arbitration seat and governing law can play significant roles in determining the standard of proof. When in doubt, it’s wise to seek professional legal advice.

Selecting and Managing the Appropriate Standard

While understanding the standard of proof is crucial, knowing how to select and manage it within the arbitration context adds another layer of competence. The choice of standard can directly influence the course of arbitration, affecting both the process and the outcome. Here, we lay out key strategies businesses should adopt to ensure that their approach to the standard of proof is informed and practical.

a. Have a firm understanding of the Dispute:  The severity and complexity of the dispute can influence the required standard. Standards such as “clear and convincing evidence” might be more appropriate in high-risk disputes to ensure fairness and thoroughness in the proceedings.

b. Be Mindful of Industry Practices: Different industry sectors have unique approaches to arbitration. For example, the Court of Arbitration for Sport (CAS) adopts the “comfortable satisfaction” standard for anti-doping cases. Businesses should be aware of these specific standards when drafting their arbitration agreements.

c. Assess Risks and Costs: Parties must understand the dispute fully. This means assessing legal obstacles, considering the number of parties involved, evaluating potential financial repercussions, and selecting an appropriate standard of proof. The arbitration’s duration, expenses, and outcome can turn on the choice of this standard. For instance, a stringent standard tends to produce decisions grounded in solid evidence, but often at the cost of time and resources. On the other hand, a relaxed standard might offer quicker resolutions and fewer expenses, but the resulting decisions could hinge on less definitive evidence. Parties should approach this balance carefully to achieve a sound and justified decision.

d. Engage Skilled Lawyers: Challenging cases benefit from the expertise of experienced lawyers. Their knowledge ensures that the proceedings progress smoothly, your interests are protected, and the standards of proof are adequately met.

e. Prioritise Evidence Collection: The strength of any case rests on the evidence. Dedicate time and resources to careful research, document collection, and expert witness consultations. The systematic organisation of this data ensures it is readily available during the proceedings.

f. Draft a Clear Arbitration Agreement: Ensure that your arbitration agreement is precise. It should detail the arbitration’s rules and procedures. To this end, parties might wish to state the chosen standard of proof to prevent future misunderstandings.

Ensuring Compliance with the Appropriate Standard

For a successful arbitration outcome, it is crucial to align your case with the stipulated standard of proof and stay updated with the latest procedural requirements. Begin by accurately assembling and organising your evidence, ensuring every document, testimony, and record substantiates your assertions. In cases that touch upon specialised subjects, solicit expert opinions early. Their insights can add depth to your arguments and enhance their credibility. Always check that your evidence conforms to the prevailing arbitration rules and relevant legal tenets.

Since arbitration guidelines may change, it is wise to reassess your strategy for alignment periodically. Moreover, collaboration with knowledgeable legal counsel with a track record in your specific arbitration area can offer invaluable guidance. Their seasoned perspective can refine the process and guarantee your strategy meets the demanded proof standards. Embracing this approach equips businesses with stronger arguments and heightens the chances of a positive arbitration result.

Potential Pitfalls and How to Avoid Them

Misunderstanding or overlooking the standard of proof in arbitration can lead to unintended consequences for businesses. Here’s what to watch out for:

a. Uniformity Assumptions: Businesses often mistakenly believe that all arbitration forums apply the same standard of proof. Tailoring your approach to each case’s specific requirements is crucial to prevent being caught off guard.

b. Overlooking Procedural Requirements: While building a compelling substantive case is essential, neglecting the correct evidentiary standard can diminish its impact. Such an oversight can result in crucial evidence being set aside.

c. Confusing Different Standards: Misinterpreting one standard for another can lead to wasted efforts. For instance, approaching ‘balance of probabilities’ with the stringency of ‘beyond reasonable doubt’ can misallocate resources.

These pitfalls carry significant consequences. Mistakes can compromise a party’s position, prolong proceedings, increase costs, and tilt the outcome against them. It is vital for businesses to be precise and informed about the standard of proof to ensure their case aligns with established benchmarks.

Conclusion: Recognising the Significance of the Standard of Proof in Arbitration

Thoroughly grasping the standard of proof in arbitration is vital for businesses embarking on such proceedings. When this insight becomes central to their strategy, it significantly boosts their readiness for any challenges they may encounter. The aim is to couple adaptability with solid foundational knowledge, positioning businesses for success in arbitration engagements.


The insights presented in this blog post aim to furnish readers with a broad understanding of arbitration within the context of global business. This material does not purport to provide legal advice, but rather serves as an informative resource. Specific decisions concerning arbitration and its relevance should always be made in consultation with qualified legal experts. Given the intricate variations and legal implications of arbitration across different jurisdictions, it is paramount to collaborate with legal professionals well-acquainted with the precise legal framework pertinent to your circumstances.

If you find this content valuable and have further questions, or if you require guidance on the detailed aspects of arbitration, please feel free to reach out to our dedicated team at arbitration@broderickbozimo.com. We stand ready to guide you through these processes and address any areas of concern.

Isaiah Bozimo

Isaiah Bozimo


Folashade Dosunmu

Folashade Dosunmu


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