What in general is the procedure followed in an international arbitration?
The proceedings usually consist of a written phase followed by an oral phase. The tribunal has authority to set time limits and make procedural orders. Each partly has the burden of proof to establish its case and is required to produce the evidence upon which it relies for that purpose. In addition, the tribunal in its discretion may order the production of further evidence. Priority is given to documentary evidence, and tribunals generally admit all documents submitted by the parties. Tribunals also generally admit any testimonial evidence offered by the parties. Affidavits and written witness statements are common in international practice. Oral testimony by witnesses is directed by counsel under the control of the tribunal, and is subject to cross-examination by opposing counsel as well as questions by the tribunal. Experts may be called at the instance of the tribunal or the parties to express opinions on technical issues or other matters requiring special expertise. Τhe tribunal is not bound by the expert’s opinion. Certain types of evidence are privileged. The evidence of interested persons is usually admissible. Evidence obtained during settlement negotiations is not admissible.
Common law or civil law is followed in international arbitration?
The procedures and practices represent a combination of features drawn from the common law and the civil law. For example, the freedom from technical, restrictive rules of evidence is derived from civil law. The common law rules of admissibility concerning competence, relevance and materiality have no place in international arbitration. The priority given to documentary evidence in international procedure is derived from civil law. In common law systems, facts are generally proved by testimonial evidence and even documentary evidence is usually introduced by oral testimony. Other features of international practice that derive from common law is the practice of cross-examination under the direction of the tribunal; further, the use of ex parte affidavits and written witness statements is derived from common law.
This combination of civil law and common law procedures has been codified in instruments such as the Uncitral Arbitration Rules, the IBA’s Rules on Evidence in International Commercial Arbitration and in the various rules of the Permanent Court of Arbitration.
II. SPECIFIC ISSUES
What Evidence is admissible?
Historically, international tribunals have taken the view that they should hear and consider everything that each party has to say concerning the dispute. It is for the parties to submit the evidence and for the tribunal to evaluate it. Evidence may be excluded if it is duplicative, defamatory or obviously irrelevant.
Burden of Proof; Standard of Proof
As a general rule, a party has the burden of proving the facts necessary to establish its claim or defense. As regards the standard of proof, however, i.e., the quantum or degree of proof used to determine whether this burden has been discharged has not evolved into a general rule. There is very little precedent on the subject. This fact is in part a reflection of the general rule that a tribunal has discretion to determine the value of all evidence submitted by the parties.
Direct v. Indirect Evidence
With respect to both documentary evidence and testimonial evidence, international tribunals distinguish between “direct” or “primary” evidence and “indirect”, “secondary” or “circumstantial” evidence. The direct evidence of a document is the document itself. A copy of the document or testimony as to the contents of the document by a person who has read it is indirect evidence. Direct testimonial evidence is the testimony of a witness who has personal knowledge of a fact or event. The affidavit of such a witness, as well as the testimony of a witness (i.e. “hearsay” testimony), are indirect evidence.
In international arbitration the distinction between direct or primary evidence and indirect or secondary evidence involves the weight of the evidence, not its admissibility. Direct evidence is preferred and will generally be given more weight than indirect evidence. Nevertheless, indirect evidence is generally accepted by international tribunals and if direct evidence is not available, indirect evidence is the only method of proof.
Presumptions and Inferences
In the absence of direct evidence, international tribunals often presume or infer facts on the basis of other proven or accepted facts (which constitute indirect evidence). A presumption or inference in favour of one party puts the burden of proof on the other party.
Tribunals often draw inferences from a party’s conduct. A party’s failure to object may give rise to an inference that the party agrees to accept the matter in issue if the circumstances are such as to call for a positive reaction if an objection exists.
A tribunal may draw an adverse or negative inference from a party’s failure to produce evidence known or presumed to be in its possession. International tribunals generally have
authority to order the production of evidence, and a party which has been ordered to produce evidence in its possession is under an obligation to do so.
Generally, however, inferences and presumptions are not conclusive and may be rebutted by relevant evidence.
Judicial Notice
An arbitral tribunal is not required to base its decision solely on the evidence produced by the parties. It may take judicial notice of facts that are so well known or so easily verified that any kind of formal proof would be superfluous.
III. PROCEDURAL LAW
What procedural law is applicable to evidence?
Based on the principle of territorial sovereignty every state has the right to regulate conduct within its own territory. The conduct of arbitrations between private parties is in principle always subject to the jurisdiction of the state where the arbitration takes place, regardless of the law that governs the substantive issues in the case.
Occasionally in arbitrations between private parties, the parties agree that the conduct of the arbitration will be governed by some law other than the national law of the state in which the arbitration takes place. Such efforts to remove the arbitration from the reach of the national law of the seat of the arbitration are commonly referred to as “delocalization” of the arbitration. The extent to which the parties themselves can delocalize the arbitration will depend on the particular national law involved.
IV. DOCUMENTARY EVIDENCE
What is the relative value of documentary v. testimonial evidence?
Although oral evidence is now common in international procedure, tribunals will generally treat documents which came into existence when the events giving rise to the dispute occurred as having more probative value than testimonial evidence. Witnesses are sometimes deliberately untruthful, truthful witnesses are sometimes mistaken in their recollection of facts, and even truthful witnesses who accurately recall the facts are sometimes discredited by adroit cross-examination so as to obscure the truth. On the other hand, contemporaneous documents that were generated without a view to improving either party’s positions in the dispute and which record or otherwise tend to prove the facts in issue are generally considered to be credible evidence, subject to any issues there may be as to the authenticity of the document.
What is the rule as to the production of documents?
As a general rule, the parties to an international arbitration are required to produce those documents upon which they rely to prove their case. The rules of most international tribunals are designed to prevent a party from being unfairly disadvantaged by the unexpected production of evidence by the other party. Thus, when a claimant files its memorial, it is expected to file at the same time all documents in its possession necessary to prove any factual issues raised in the memorial. Similarly, when the respondent files its counter–memorial, it must submit all documentary evidence upon which it relies for its defense and any counterclaim. The same rule applies to replies, rejoinders and other written pleadings.
Is there a right of discovery?
There is such a right but it is generally limited to documents which are relied upon in the pleadings of the other party. This right is a corollary of the rule that parties to an international arbitration are supposed to produce those documents upon which they rely to prove their case. As a general rule, a party is under no obligation to produce documents adverse to its interests unless ordered to do so by the tribunal.
A party may request documents from the other party, provided that they are identified with reasonable precision. If these documents are not produced, the requesting party may ask the tribunal for an order directing production of the documents. The decision to make such an order is within the discretion of the tribunal unless the parties have agreed otherwise. Although a tribunal may order the production of documents it does not have the power to compel production.
What rules apply as to the authenticity of documents?
The “best evidence rule” which requires that the terms of a document be proven by production of the document itself is not applicable in proceedings before international tribunals. International tribunals seldom require the submission of original documents.
However, if the authenticity of a document is challenged, the party submitting it must prove its authenticity by whatever evidence is appropriate in the circumstance of the case.
V. TESTIMONIAL EVIDENCE
What are the principles governing testimonial evidence?
While documentary evidence is in principle preferable, it sometimes happens that the available documents are not sufficient in and of themselves to determine the facts in issue. In such case, the tribunal must rely in whole or in part upon testimonial evidence to reach a decision.
The rules governing the admission and evaluation of testimonial evidence are essentially the same as those applicable to documentary evidence.
The general practice of international tribunals with respect to oral testimony is to allow counsel to examine witnesses subject to the control of the tribunal. Cross-examination by opposing counsel is invariably permitted, and the tribunal itself may put questions to the witness. Ordinarily, the claimant’s witnesses present testimony first, followed by the respondent’s witness. Usually, the claimant and the respondent may also produce rebuttal testimony. In addition, the tribunal itself may call witnesses. It is to be noted that the tribunal does not have the power to compel witnesses to attend the hearing or to testify. If a witness refuses to appear, the tribunal or a party with the consent of the tribunal may be able to apply to a local court for an order that the witness attend the hearing and give testimony. As with the production of documents, the availability of such judicial assistance in connection with the witnesses depends on the municipal law in force at the seat of the arbitration.
Is hearsay evidence allowed?
International procedure allows the admission of hearsay evidence. As with other kinds of evidence, the issue is usually one of evaluation rather than admissibility.
What are the rules governing affidavits and witness statements?
It is common practice for parties in international arbitrations to submit testimonial evidence in the form of written witness statements – sometimes referred to as “affidavits” or “depositions” – prepared ex parte, i.e. without the participation of the opposing party or the tribunal. Such statements are generally submitted on the understanding that the witness making the statement will be available during the oral phase of the proceedings for crossexamination or questions by the tribunal. Failure of the witness to appear for cross-examination, if requested to do so by the other party, will affect the weight given to his written testimony by the tribunal and may result in that testimony being deemed inadmissible.
VI. EXPERT EVIDENCE
What form does Expert Evidence takes?
Such evidence may take the form of testimony, reports or enquiries. It is usually used to assist the tribunal with such technical matters as the valuation of claims, the cause of structural or material failure, the accepted practice within a given industry and to prove the content of national law.
Occasionally the same person may appear as both a witness and an expert in international proceedings. There is no general rule prohibiting such practice. Experts may be presented by the parties or appointed by the tribunal. Experts are expected to be independent and objective.
The tribunal is not bound by the conclusions of the expert, nor is a tribunal obliged to appoint an expert or order an expert inquiry when requested to do by a party.
VII. EVIDENCE – LATE PRODUCTION
Is late production of evidence allowed?
In all arbitrations time limits are established for the production of evidence. These limits may be imposed by the arbitration clause, the arbitration rules or by the tribunal. The tribunal usually has discretionary authority to extend the time limits.
VIII. EVIDENCE OF INTERESTED PERSONS
Is evidence of interested persons acceptable?
Although the national law of a number of states prohibits interested parties from appearing as witnesses, there is no general rule in international arbitration that precludes the admission of their evidence. This evidence has long been accepted by international tribunals.
IX. IS EVIDENCE OBTAINED IN SETTLEMENT NEGOTIATIONS
Is evidence obtained in settlement negotiations admissible?
An international tribunal will not as a general rule consider evidence consisting of statements, admissions or proposals made in the course of settlement communications.
X. PRIVILEGED EVIDENCE
Are privileged communications disclosed in arbitrations?
In arbitrations governed by national law the existence and scope of privilege will be determined by the law of the seat of the arbitration. The laws of most states protect military secrets and communications between a doctor or a lawyer and his client from disclosure in arbitral proceedings.
In commercial arbitrations, parties occasionally resist the production of evidence on the ground that it contains proprietary or confidential business information. Failing agreement of the parties, business secrets are not as a general rule privileged under national law.
