Part 2 Specific Issues of Arbitration in Brazil, 12 Evidence Production and the Role of the Arbitrators

Subject(s):

Arbitrators — Evidence — Arbitration

This chapter looks at evidence production in arbitration from a Brazilian arbitrator's perspective. Evidence production in arbitration is based on two fundamental principles: actio incumbit probatio and fairness (due process) and party equality. According to the first, the burden of proof rests on the party who advances a proposition affirmatively, be that party the claimant or the respondent. While the claimant bears the burden of proving the facts which support their claim, the respondent bears the burden of proving the facts supporting their defences. The second set of principles relates to procedural fairness and due process. Accordingly, evidence production is governed by fairness (due process) and party equality. The idea of procedural equality requires that both parties be treated in a manner ensuring that they have an equal opportunity to present their case. The chapter then considers the production of documentary evidence, fact witnesses, expert reports and testimonies, and legal expert reports and testimonies in Brazilian arbitration practice.