Part XIII Dispute Resolution in the Construction Industry, 36 Shifting the Burden of Proof: Revisiting Adjudication Decisions
Andrew Tweeddale, Keren Tweeddale
From: Defining Issues in International Arbitration: Celebrating 100 Years of the Chartered Institute of Arbitrators
Edited By: Julio César Betancourt
- Jurisdiction — Witnesses — Burden of proof — Conflict of laws — Arbitral tribunals — Arbitrators
The concept of the burden of proof is a fundamental part of any adjudicative procedure-whether it be court proceedings, arbitration, or adjudication. Stepped dispute resolution clauses are now the norm in construction contracts and this chapter examines how these clauses affect the burden of proof. English law provides that in cases where the burden of proof is unclear-because the parties’ cases are equally weighted-the burden of proof lies on the party who would be unsuccessful if it did not produce any evidence. Also, it does not matter if a party is making an affirmative or negative assertion, the burden of proof still lies with that party. The chapter analyses the issue of whether an adjudicator’s decision shifts the burden of proof by considering cases such as Walker Construction (UK) Ltd v Quayside Homes Ltd, City Inn Ltd v Shepherd Construction Ltd, The Construction Centre Group Ltd v The Highland Council, and Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc.