Are there particular rules governing evidentiary matters in arbitration? Will the local courts in your jurisdiction play any role in the obtaining of evidence?

International Arbitration

Austria Small Flag Austria

Since there are no rules on the taking of evidence in Austrian arbitral proceedings, the parties are free to agree on any such rules. In the absence of an agreement and within the boundaries of the parties’ basic procedural rights, a arbitral tribunal may freely carry out and rule upon the admissibility of the taking of evidence.

Since the arbitral tribunal lacks the coercive power to enforce its own decisions, it may request judicial assistance from the competent state court (section 602 ACCP). Such assistance may concern e.g. the summoning of a witness, the hearing of a witness testimony under oath or the enforcement of document production orders.

France Small Flag France

In general, arbitral tribunals have the right to undertake all necessary steps concerning evidentiary matters. Accordingly, the tribunal can call upon any person to provide testimony and enjoin a party to produce any item of evidence it possesses (Article 1467, CCP). In addition, unless otherwise stipulated, the arbitral tribunal shall have the power to rule on a request for verification of handwriting or a claim of forgery in accordance with Articles 287 through 294 and Article 299 (Article 1470, CCP).

Under French law, local courts may also play a role in the obtaining of evidence where the arbitral tribunal has not yet been constituted. According to Article 1449 CCP, an application shall be made to the President of the Tribunal de grande instance or of the Tribunal de commerce, who shall rule on the measures relating to the taking of evidence in accordance with the provisions of Article 145.

Moreover, according to Article 1469(1) CCP, if one of the parties to arbitral proceedings intends to rely on an official (acte authentique) or private (acte sous seing privé) document to which it was not a party, or on evidence held by a third party, it may, upon leave of the arbitral tribunal, have that third party summoned before the President of the Tribunal de grande instance for the purpose of obtaining a copy thereof (expédition) or the production of the official document or piece of evidence.

Portugal Small Flag Portugal

There are no particular rules governing evidentiary matters in arbitration.

Where authorised by the arbitral tribunal, a party may request assistance in the taking of evidence from national courts. In such a case, evidence is taken and weighed up by national courts and sent to the arbitral tribunal, which shall analyse it together with the rest of the evidence.

Romania Small Flag Romania

As a rule, the party who files a claim has the obligation to prove it. In general, the parties submit the evidence on which they intend to rely on in limine litis (at the start of the procedure).

The most common means of proof are written records, judicial expertise, witness statements and cross-examination. All pieces of evidence are of equal value and subject to the court’s evaluation and conviction. According to the traditional rules of evidence within the Civil Procedure Code and the Rules of the Court of International Commercial Arbitration, evidence such as a witness statement or cross-examination is taken directly before the arbitral tribunal at the hearing and the expertise should be of a judicial nature, i.e. it is carried out under the legality control of the arbitral tribunal. A particular rule in arbitration is that witnesses are not heard under oath, as it would happen before a local court. The arbitral tribunal does not have any powers to compel the witnesses or experts who refuse to appear before the arbitral tribunal or to apply any sanctions. For any such measures, the parties have to file a claim to this effect before the local tribunal whose jurisdiction covers the seat of the arbitration.

The arbitral tribunal can also order a party to produce certain evidence. As well, the arbitral tribunal might request written information to public authorities regarding their documents and actions, but in case the public authority refuses to comply with such a request and submit the information, the parties or the arbitrators have recourse to local courts to request the enforceable court’s order for production of documents. The local courts might also play a role in acknowledging certain matters of fact prior or during the arbitration proceedings such as the state of certain assets, the statement of a certain witness where there is urgency due to the risk the evidence might get lost.

As a matter of principle, the rules on evidence are flexible when it comes to international and domestic arbitration, which makes it possible in procedures such as ad-hoc arbitration or under ICC Rules to submit written witness statements and expert reports drafted by party-appointed experts. Also, the IBA Rules on the Taking of Evidence tend to become a generally accepted standard in practice.

Sweden Small Flag Sweden

The parties are free to agree on the rules of evidence in arbitration and they may present any and all evidence on which they wish to rely.

On the request of a party, the tribunal may order the opposing party to produce documents. Such order is not enforceable.

A party may also, subject to a leave from the tribunal, request that a district court orders the production of documents, including documents held by third parties. Such court order is enforceable and may be sanctioned by fines.

A party can also, with the consent of the tribunal, apply to a district court for the examination of a witness or an expert under oath.

Even without an agreement between the parties to apply the IBA Rules on the Taking of Evidence in International Commercial Arbitration, these rules often serve as guidance in international arbitrations.

New Zealand Small Flag New Zealand

Strictly speaking, the New Zealand Evidence Act 2006 does not apply to arbitrations in New Zealand. However, it is not uncommon for its provisions to be applied by analogy. The IBA Rules on the Taking of Evidence in International Commercial Arbitration will not generally be taken into account unless the parties so agree.

Generally, the New Zealand arbitration climate remains, in practice, conscious of domestic law and practice when determining procedural or evidentiary matters. It may therefore be particularly sensible to incorporate a set of procedural rules or to record that the arbitration is to be conducted by reference to the IBA Rules on the Taking of Evidence in International Commercial Arbitration, or both.

New Zealand courts will play a role in taking evidence if the tribunal requests assistance (article 27 of Schedule 1 of the Act). The High Court recently ordered a non-party to produce documents for the purposes of an arbitration on the basis that the documents were relevant and their confidentiality would be adequately protected (Infratil Infrastructure Property Limited v Viaduct Harbour Holdings Limited & Ors [2015] NZHC 2533). Similarly, in another case, a non-party discovery ordered approved by the arbitrators was granted because it was necessary and relevant to have evidence of the market price of gas for the determination of the dispute (Vector Gas Contracts Limited & Ors v Contact Energy Limited & Ors [2014] NZHC 3171).

Separately, New Zealand courts have the power to order the taking of evidence in New Zealand in support of a foreign-seated arbitration (Dalian Deepwater Developer Ltd v Dybdahl [2015] 3 NZLR 260, relying on sections 184 and 185 of the Evidence Act 2006).

Clause 3 of Schedule 2 specifies additional powers a court may exercise with regard to the obtaining of evidence, which a court may exercise with the permission or invitation of the arbitral tribunal.

Switzerland Small Flag Switzerland

Art. 184 PILA and art. 375 CPC stipulate rules for taking of evidence and the participation of the state courts. In principle, the arbitral tribunal takes the evidence itself. If, however, taking of evidence or other procedural acts require the assistance of the state courts, e.g. due to the fact that arbitral tribunals do not have coercive powers, such participation may be requested from the state court at the seat of the arbitral tribunal by the arbitral tribunal itself or by a party to the arbitral tribunal with the consent of the arbitral tribunal.

UAE Small Flag UAE

There are no particular rules governing evidentiary matters in onshore arbitrations. The DIAC Rules and ADCCAC Rules grant the tribunal the power to decide on the applicable rules of evidence.

Certain evidentiary formalities should be observed. For example, any fact or expert testimony must be sworn in accordance with the specific wording set forth in the UAE Law of Evidence.

Tribunals in DIFC and ADGM-seated arbitrations enjoy wide latitude in assessing the admissibility, relevance, materiality and weight of evidence, unless the parties have agreed otherwise. The rules of evidence that apply to the DIFC Courts and the ADGM Courts do not extend to DIFC and ADGM arbitrations. Further, the DIFC Arbitration Law and the ADGM Regulations permit tribunals, as well as a party following leave from the tribunal, to seek the assistance of the DIFC Court or ADGM Court in taking evidence, which may grant the request in accordance with its rules on the taking of evidence.

Malaysia Small Flag Malaysia

In general, arbitrations enjoy a great degree of evidentiary flexibility in Malaysia as the law of evidence in Malaysia, which is codified in the Evidence Act 1950, does not apply to arbitrations (section 2, Evidence Act 1950). However, an arbitrator’s discretion on the admissibility and weight to be accorded to evidence must abide by the rules of natural justice.

However, it is not uncommon for international arbitrations to adopt the International Bar Association Rules on the Taking of Evidence in International Arbitration (revised in 2010) and for the rules to serve as guidelines in domestic arbitrations. Under the rules, documents protected by legal professional privilege are generally inadmissible as evidence.

A party, with the tribunal’s permission, may apply to the High Court for assistance in the taking of evidence. It is submitted that the powers of the High Court in this regard are restricted to the following areas as specified by statute:

  • The attendance of a witness to give evidence.
  • The production of documents by a witness.

United States Small Flag United States

The FAA empowers arbitrators to compel the appearance of witnesses and the production of evidence, and it permits parties and arbitrators to seek judicial enforcement of arbitral tribunals’ discovery orders.

Institutional rules generally provide arbitral tribunals with broad discretion over arbitral procedure, in particular relating to the admissibility and weight of evidence. Most institutional rules require parties to submit written witness statements, or at minimum identify their witnesses and their anticipated testimony subject areas, in advance of the evidentiary hearing, so as to avoid “surprise” testimony.

Both the AAA and the CPR have issued protocols advising arbitrators to strive for simplicity, speed, and cost effectiveness in the arbitral discovery process. International arbitral tribunals and parties frequently refer to the IBA Rules on Evidence as relevant guidelines for the conduct of proceedings in a manner consistent with the flexibility and efficiency parties choosing arbitration typically desire.

Courts show considerable deference to the arbitrators’ determinations regarding the scope of discovery or evidence admitted. Parties generally cannot challenge an arbitrator’s discovery order in court, nor can they obtain a court-issued subpoena seeking discovery upon the failure of the arbitrator to issue one.

Under a separate federal statute (codified at 28 U.S.C. § 1782), a district court may order production of evidence “for use in a proceeding in a foreign or international tribunal.” The statute allows for such orders to be made upon request of the foreign tribunal or upon application of any interested party. The extent to which section 1782 may be available in aid of private arbitration seated outside of the US, however, is unclear, with courts taking divergent views.

Singapore Small Flag Singapore

There are no specific provisions in the IAA on evidentiary matters in arbitration. In practice, arbitrators routinely refer to the International Bar Association Rules on Taking of Evidence in International Arbitration.

The IAA does not expressly grant arbitral tribunals the power to order discovery from non-parties. However, parties wishing to obtain evidence from non-parties may be able to obtain an order from the Singapore courts to do so. Under the IAA, the Singapore High Court may order that a subpoena to testify or a subpoena to produce documents be issued. IAA, Section 13.

Brazil Small Flag Brazil

Yes, Article 22 of Law nº 9.307/96 broach the question of evidence in arbitration. The caput of Article 22 provides that the arbitrator or the arbitral court may take the testimony of the parties, hear witnesses and determine the expert examination or other evidence deemed necessary, upon request of the parties or ex officio. The Paragraph 1 provides that the hearing of the parties and witnesses will be taken at local, date and time previously reported, in writing, and reduced by term, signed by the deponent or at his request and by the arbitrators. The Paragraph 2 provides that in case of party fails, without justified cause, of the summons to give personal testimony, the arbitrator or the arbitral court shall take into account the conduct of the defaulting party when pronouncing his award; if the absence is of a witness, in the same circumstances, the arbitrator or the president of the arbitral court can request the judicial authority to lead the reluctant witness, proving the existence of the arbitration convention. The Paragraph 3 provides that the default of the party shall not prevent the rendering of arbitral award. The Paragraph 4 was recently repealed and Paragraph 5 provides that if during the arbitration occur the replacement of an arbitrator, will be a criterion of the substitute to repeat evidence already produced.

Will the local courts in your jurisdiction play any role in the obtaining of evidence?: Yes, as seen above, in the case of non-attendance of a witness for testimony, the arbitrator or the president of the arbitral court can request the judicial authority to lead the reluctant witness, proving the existence of the arbitration convention. In addition, the parties may also file preparatory provisional remedies for the production of certain evidence even before the institution of arbitration.

Canada Small Flag Canada

Tribunals are required to follow the Model Law regarding the exchange of statements, oral hearings, and document production. Absent an agreement, tribunals often refer to the IBA Rules on the Taking of Evidence in International Commercial Arbitration. Courts can make orders to ensure document disclosure and witness attendance at hearings.

Panama Small Flag Panama

In Panama, there are no particular rules governing evidentiary matters in arbitration. The Panama Arbitration Law gives freedom to the arbitration tribunal to determine the rules regarding the collection and submission of evidence, provided the parties have not agreed to specific rules on the matter, such as, for instance, the IBA Rules on the Taking of Evidence in International Arbitration.

In the absence of any such agreement, the common practice for arbitration tribunals seated in Panama is to abide by the general rules for the collection and submission of evidence for civil judicial proceedings contained in the Panama Judicial Code (Code of Civil Procedure).

Local courts in Panama may assist in the obtaining of evidence for arbitration proceedings. The arbitration tribunal or any of the parties with its consent may request the assistance of the courts of Panama or the courts of any other State for the taking of evidence. Panamanian courts have ten (10) working days, once a request from an arbitration tribunal is received, to provide the assistance required.

Spain Small Flag Spain

There are no particular rules governing evidence production by the parties or analysis by the arbitrators, who can freely decide. Local courts are committed to help, both the parties and the arbitrators, who can request at any moment their assistance in order to obtain any piece of evidence.

Turkey Small Flag Turkey

According to the Law No. 4686, parties submit their evidences within the period specified by the sole arbitrator or the arbitral tribunal. The sole arbitrator or the arbitral tribunal can apply to the court for the collection of the evidences. Under this circumstance, the court will apply the provisions of the Law no. 6100. According to the Law no. 6100, etiher party may apply to the court for the collection of the evidences with the approval of the sole arbitrator or the arbitral tribunal.

Germany Small Flag Germany

In general, the arbitral tribunal has broad discretion to determine the procedural rules of the arbitration. This also includes the rules on the taking of evidence. However, the parties are free to agree on the procedures for the taking of evidence as part of their party autonomy.

State courts may support the arbitral tribunal if a party (with the consent of the arbitral tribunal) or the arbitral tribunal itself ask for assistance (section 1050 (1) ZPO). State courts may for example hear witnesses.

Italy Small Flag Italy

There are no particular rules governing the evidentiary matters in arbitration under Italian law. Pursuant to article 816 bis of the Italian Civil Procedural Code, prior to the commencement of the proceeding, the parties are free to agree on the rules governing the arbitration proceedings. In the absence of such an agreement, the arbitrators may regulate the proceedings in any way that they consider appropriate.

The local courts may assist the arbitrators if a witness refuses to appear before the arbitral tribunal. In such a case, the arbitrators may ask the President of the Tribunal where the arbitration has its seat to order the witness to appear in front of the arbitral Tribunal.

United Kingdom Small Flag United Kingdom

An arbitrator may order the disclosure of documents or attendance of witnesses (sections 34 & 43). Rules of evidence are normally taken from either the (a) CPR or (b) International Bar Association (IBA) Rules on Taking of Evidence in International Arbitration.

The court may assist where necessary (section 44).

Ireland Small Flag Ireland

In the absence of agreement between the parties in relation to the provisions of the rules of procedures of the arbitration, the arbitral tribunal should conduct the proceedings in such a manner as it considers appropriate. This power includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

An arbitral tribunal must rely on the coercive power of courts in taking evidence where the arbitral tribunal or a party with the approval of the arbitral tribunal may request assistance in the taking of evidence in arbitral proceedings from the High Court. The High Court may execute the request in accordance with its own rules in obtaining evidence.

Poland Small Flag Poland

The tribunal has broad discretion on evidentiary matters. Relevant evidence may be admitted in any form (e.g. witnesses, documents, expert witnesses, etc). Nevertheless the arbitral tribunal is not empowered to use any coercive measures to obtain evidence. Written witness statements are becoming more frequently used. Unless the parties agree otherwise, the arbitral tribunal may appoint experts.

The parties may enter into stipulations concerning evidence. If the parties require or at least do not object, the tribunal may apply the IBA Rules on the Taking of Evidence in International Commercial Arbitration.

The arbitral tribunal may apply to the court to take evidence or perform other actions that the arbitral tribunal is unable to perform. The parties and the arbitrators may participate in the evidentiary proceeding before the court.

There are no provisions in the arbitration law dealing with document production. No broad discovery procedure is used in Poland, either. At the request of a party, the tribunal may order the production of a specified document, but if the party refuses it may in specific circumstances only draw negative inferences against the party refusing to comply with the order. If a document is held by a third party, the tribunal may, upon a motion of a party, ask the court to order the third party to produce the document.

Updated: February 6, 2017