The Burden of Proof in Construction Arbitration

Addressing the Absence of Clear Criteria Under Brazilian Law Through International Standards and Protocols

Abstract

In the context of construction arbitration proceedings in Brazil, this article addresses the lack of explicit and well-defined criteria within the Brazilian legal framework regarding the burden of proof borne by the parties and its impact on the resolution of complex construction arbitration disputes. Recognizing the pressing need for a solution, even if preliminary, the article advocates for the adoption of standards and international protocols as a means of bridging existing legal gaps. It further discusses the necessity for the arbitral tribunal (or sole arbitrator) to ensure that the parties are informed – preferably from the outset of the arbitral proceedings (by means of the well-known Procedural Order No. 1) – of the evidentiary standards to be applied. The article concludes that the proposed measures foster a more transparent approach to resolving complex construction arbitration disputes and afford the parties greater predictability in formulating their respective strategies.