Who has the Burden of Proof in a commercial dispute under the Arbitration Act 1996?

Under the Arbitration Act the tribunal has wide powers to determine how they will hear the case and what kinds of evidence they will hear. But in general the normally accepted legal principles will apply. Which means that it is up to the claimant to prove their case, although as in all civil proceedings the standard of proof is the balance of probabilities only, meaning they need to convince the tribunal that there is a 51% chance they are right.

In a simple debt dispute, the claimant normally needs to prove that the debt exists. For example by showing a contract of sale with the price the claimant has promised to pay. This will be enough to prove that money is owed. If the defendant alleges they have paid they will need some evidence to back this up, such as a receipt of cheque stub. Etc.

The burden of proof would lie with the claimant. They would have to show that monies owed have not been paid.

If the respondent provide evidence that the monies have been paid then the arbitrator will decide who is at fault.

Under traditional rules of evidence, a party has the burden of proof as to each fact the existence

or nonexistence of which is essential to the claim for relief or defense he or she is asserting

[Evidence Code § 500]. Thus, many arbitrators struggle with

who may have the burden of proof

in establishing such issues as the existence of a valid fee agreement, the voidability of the fee

agreement for failure to comply with Business and Professions Code Section 6147 or 6148, the

reasonableness of the fee, the u

nconscionability of the fee, the necessity of the work for which

the fee was charged, the existence of some ethical violation, conflict of interest or malpractice

which may defeat the attorney's right to a fee, and similar issues which come up in fee

arbit

rations.

In fee arbitrations, however, strict notions of who has the burden of proof rarely if ever should

become determinative of the outcome of the proceeding, for a number of reasons. First, even

under traditional rules of evidence in civil cases, tri

al courts have the discretion to reallocate the

burden of proof as the circumstances may dictate.

See, generally,

1 Witkin,

California Evidence

,

3d Ed., §§ 136

-

139.

The discretion of the trial court to alter the burden of proof may be exercised in light

of a number

of factors:

"In determining whether the normal allocation of the burden of proof should be altered, the

courts consider a number of factors: the knowledge of the parties concerning the particular fact,

the availability of the evidence to the

parties, the most desirable result in terms of public policy

in the absence of proof of the particular fact and the probability of the existence or nonexistence

of the fact. . . . '[T]he truth is that there is no and cannot be any one general solvent for a

ll cases.

It is merely a question of policy and fairness based on experience in the different situations.’

[Worsley v. Municipal Court

, (1981) 122 Cal.App.3d 409, 420 [176 Cal.Rptr.324].

Second, fee arbitrations are intended to be much less formal than

trial proceedings. The Rules of

Procedure for Fee Arbitrations and the Enforcement of awards by the State Bar of California (the

"Rules") have been promulgated to reflect this informality. Rule

3.541(D)

specifically gives to

the panel the discretion to

alter the burden of proof as well as the burden of going forward with

the evidence on any particular issue:

I'm not sure about burden of proof. Arbitration says it all, each side presents their case and the arbitrator decides who is in the right.