Evidence - overviewThe role of documentary evidence

Even in an arbitration in England between English parties, document production is unlikely to follow the same format as document disclosure in English litigation. The principle underlying arbitration is that the procedure of the arbitration including evidential matters should be flexible and be determined by the parties and where they cannot agree, by the tribunal. The extent of document production in international arbitration is often seen as a middle ground between the often onerous disclosure obligations in common law jurisdictions and the more restrictive and inquisitorial approach adopted in civil law jurisdictions. The arbitral tribunal does not have the power to compel a party that is not a party to the arbitration agreement to produce a document.

For more detail see Practice Note: The role of documentary evidence.

Evidence - IBA rules

Parties may agree to the IBA rules governing the taking of evidence unless any specific provision conflicts with any applicable mandatory rule. The rules apply to documents, factual witnesses, party appointed experts, tribunal appointed experts, on site inspection, evidentiary hearing and the admissibility and assessment of evidence.

For more detail see Practice Note: Evidence - IBA rules.

Evidence - institutional and UNCITRAL rules

Institutional rules generally give tribunals and parties wide discretion to determine how evidence is prepared, presented and treated. The way evidence is given will therefore depend on many factors, including the nationalities and legal traditions of the parties, their advisers and the tribunal, and the national law governing the arbitration. Very occasionally, arbitration agreements contain provisions relating to the collection and presentation of evidence (eg, by stating that discovery will be restricted to specific documents identified by the parties), and it is often open to the parties to agree rules relating to evidence, either in advance or during the course of an arbitration. The institutional rues adopted by the parties either in their arbitration agreement or subsequently will make some provision for how evidence should be treated in arbitration but leave a wide discretion to the tribunal in practice.

For information on the ICC Rules see Practice Note: Evidence - ICC Rules.

For information on the LCIA Rules see Practice Note: Evidence - LCIA Rules.

For information on ICDR, UNCITRAL, Swiss, SCC and WIPO Rules of arbitration see Practice Note: Evidence - institutional and UNCITRAL Rules.

Privilege

It is for the tribunal to determine what rules of evidence will apply to the arbitration, including what rules of privilege will apply. If the tribunal adopts the IBA Rules of Evidence, specific provision is made (art 9(3)) that in considering issues of privilege the tribunal may take into account the need to maintain fairness and equality as between the parties, particularly if they are subject to different legal or ethical rules by virtue of their backgrounds.

For more information see Practice Note: Privilege.

Disputes over documentary evidence

Once each party has submitted the documents it relies on, there is then usually an opportunity to request documents from the opposing party. This process is often recorded in a Redfern Schedule setting out the request, response and, if necessary, tribunal's ruling on any dispute. Even if the IBA Rules have not been formally adopted, the tribunal is likely to have regard to its principles, unless the parties expressly agree to a different approach.

For more information see Practice Note: Disputes over documentary evidence.

Preparing witness evidence

Witness evidence is greatly important in arbitration as, as in litigation, it gives the parties their opportunity to tell their story. The way in which the evidence is presented will depend on any procedures specified in the arbitration agreement (though this would be unusual), any applicable institutional rules, whether the IBA Rules on Taking Evidence in International Arbitration have been adopted and any applicable national laws. It will also be influenced by the nationality of the parties, their legal representatives and the tribunal. Section 34 of the Arbitration Act 1996 provides that it is the tribunal’s responsibility to decide all procedural and evidential matters (subject to any agreement between the parties) including whether and to what extent there should be oral or written evidence or submissions.

For more information see Practice Note: Preparing witness evidence.

Giving witness evidence

The way in which witness evidence is presented is not a fixed procedure and will therefore vary from arbitration to arbitration. It is for the tribunal to decide on the appropriate process for the dispute and to determine whether and to what extent there should be oral evidence. The procedure should be set out early in the proceedings by the tribunal so that the parties understand how their evidence should be given. If the case of non-attendance of a witness, parties may apply to the court to secure attendance.

For more information see Practice Note: Giving witness evidence.