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 (2nd Edition)
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. It is not uncommon for Malaysian arbitrations to adopt the International Bar Association Rules on the Taking of Evidence in International Arbitration 2010 as evidentiary guidelines.
A party, with the tribunal’s permission, may apply to the Malaysian 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.
Under Article 19(2) of the International Commercial Arbitration Law No 19.971 (ICAL), unless parties can reach an agreement, the arbitral tribunal may direct the arbitration in the way it considers appropriate, having the power to determine the admissibility, relevance and weight of the evidence. However, parties tend to apply in international arbitration procedures the IBA Rules on the Taking of Evidence.
The Rules of International Commercial Arbitration of the Santiago Arbitration and Mediation Center also contain certain provisions regarding evidence, specifically in Article 24 sections 1 to 4. Those provisions refer to matters such as the burden of proof, and the power of the arbitral tribunal to request the parties for additional evidence, among others.
Also, under Article 27 of ICAL, the arbitral tribunal and the parties, previous authorization of the former, may recur to the local courts for assistance on the taking of evidence. The requested local court may execute the request within its competence and according to its rules on taking evidence.
Arbitral tribunals in Portugal have the power to determine the admissibility, importance and value of any evidence. The parties are free to attach to their pleadings the documents that they consider important to prove their case.
Save upon a different agreement by the parties, the arbitral tribunal can decide if there will be any hearings for the production of evidence or if the proceedings will be conducted with basis on documents alone (art. 34º (1) LAV).
When the production of evidence depends on the will of one of the parties or of third parties and they refuse to collaborate, a party can request the local courts that the evidences are produced (with the previous authorization of the arbitral tribunal). This is applicable even in cases of requests for production of evidences arising within the scope of arbitrations seated abroad (art. 38º LAV).
Luxembourgish law does not provide for specific rules of evidence or discovery for arbitration proceedings and consequently the general provisions of the NCPC will be applicable unless otherwise provided by the parties (article 1230 NCPC).
The arbitration court may order the parties to disclose certain documents, may order interim measures, issue preventive evidentiary injunctions (article 350 NCPC) or emergency evidentiary measures (article 933 NCPC), but no arbitration decision may bind a third party. In commercial matters, private documents, accepted invoices, correspondence, balance sheets or witness statements are often submitted as evidence (article 109 of the Commercial Code).
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.
There are no particular rules that govern evidentiary matters in arbitration. Provided that the tribunal treats both parties equally and fairly, it has broad discretion regarding the conduct of the proceedings. This includes the tribunal’s authority to decide on the admissibility of the taking of evidence, whether to take evidence, and how to assess the results (section 1042 ZPO). In practice, the IBA Rules on the Taking of Evidence are often referred to, especially in cases that are not purely domestic.
State courts may play a role in the obtaining of evidence. The tribunal (or either party upon approval by the tribunal) may ask the competent court to provide support in the taking of evidence (section 1050 ZPO). If the court deems the request admissible, it shall provide support in accordance with its procedural rules, which govern the taking of evidence in state court litigation.
This is particularly important in regard to compelling witnesses to testify. While the tribunal cannot compel witnesses, it can request the assistance of the competent state court. Following such request, the competent court may compel witnesses that fall under its jurisdiction to appear in court and provide testimony. The arbitrators are entitled to be present and pose questions to the witness. In practice, also the parties are present at this hearing and usually will be granted the opportunity to ask questions.
Under the Arbitration Act the arbitral tribunal is empowered to determine the admissibility, relevance, materiality and weight of any evidence, however, no specific rules of evidence are established. The Arbitration Act also generally provides for the right of arbitral tribunal or a party with the approval of the arbitral tribunal to request from local court assistance in taking evidence. It also provides that the court may execute the request within its competence and according to its rules on taking evidence. In practice, however, local courts do not exercise such powers. The Draft Law provides for the procedural right of local courts to support arbitration in the issue of obtaining of evidence by application of the party or arbitral tribunal, including witness examination and appointment of expert examination.
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.
Article 209 of the UAE CPC provides that, in specific circumstances:
"The arbitration shall…cease his function to refer to the president of the court concerned for the following action to be taken:
'To rule for the legal penalty to be applied to any witnesses who fail to attend or decline to answer
To rule that some other party be required to produce a document in his possession which is essential for an arbitration ruling to be given.'"
Whilst rarely exercised, these powers to allow, in theory, an Arbitral Tribunal to access to the local courts and impose the production of evidence.
UAE Off-Shore Jurisdictions
Article 34 of the DIFC Arbitration Law and Regulation 43 of the ADGM Regulations provide that the Arbitral Tribunal or a party (with approval of the Arbitral Tribunal) the right to request ‘assistance in taking evidence’.
The rules of arbitral institutions such as the DIAC Rules (Article 27) or DIFC-LCIA Arbitration Rules (Article 22) provide the Arbitral Tribunal with the discretion to adopt its preferred rules on evidence. In respect of the DIFC-LCIA Arbitration Rules (Article 22) this discretion may only be exercised after giving the parties a reasonable opportunity to state their views.
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.
The applicable rules of evidence will be chosen by the parties. If the arbitration is administrated by any particular institution, it would be the rules of such institution which would govern the evidence within the arbitration process. If it is an ad hoc arbitration and the parties have agreed no rules on evidence (for instance, the IBA), the arbitrators have wide powers to decide on these, always respecting the principle of equal treatment of all parties, allowing them sufficient opportunity to present their case.
In practice, any arbitral tribunal may apply to the Spanish Courts for assistance in the gathering and ordering of admitted means of evidence, but only in support of a request produced by the arbitral tribunal (article 8.2 of the SAA).
With regard to evidentiary matters, Law on Arbitration contains general rules on examination of witnesses and experts. In this regard, the law provides that witnesses may be examined at the hearing, or, if the parties agree so, they may also be examined outside of the hearing. As for experts, the law provides that the arbitral tribunal may appoint an expert to provide its opinion on the issues determined by the tribunal. The tribunal may order the parties to provide all necessary information and documents to the expert.
As for the role of local courts in the evidentiary process, the arbitral tribunal may address the court and request the assistance of the court in furnishing of evidence (for example, in order to obtain a witness statement from a particular witness).
Arbitrators are likely to follow the 1985 UNCITRAL Rules of Procedure, International Chamber of Commerce Rules of Procedure, IBA Rules on the Taking of Evidence in International Arbitration and the PDRCI Rules of Procedure. The parties are also free to agree on the procedure to be followed in the conduct of arbitral proceedings, including the adoption of procedural rules of institutional arbitration.
If parties fail to agree on the procedure to be followed, the arbitral tribunal can conduct arbitration in the manner it considers appropriate, taking into account the provisions of the Arbitration Law and the ADR Act.
Also, any party to an arbitration, whether domestic or foreign, may request the court to provide assistance in taking evidence.
A party requiring assistance in the taking of evidence may petition the court to direct any person, including a representative of a corporation, association, partnership or other entity (other than a party to the ADR proceedings or its officers) found in the Philippines, for any of the following:
a. To comply with a subpoena ad testificandum and/or subpoena duces tecum;
b. To appear as a witness before an officer for the taking of his deposition upon oral examination or by written interrogatories;
c. To allow the physical examination of the condition of persons, or the inspection of things or premises and, when appropriate, to allow the recording and/or documentation of condition of persons, things or premises (i.e., photographs, video and other means of recording/documentation);
d. To allow the examination and copying of documents; and
e. To perform any similar acts.
As per section 19 of the Arbitration & Conciliation Act, 1996, the rules of Evidence Act are not applicable in arbitration. However, there are various judicial pronouncements, which provide that the broad principles of evidence will be applicable in arbitration. Like the onus to prove a particular fact is on the person, who has stated such fact. The normal rules relating to examination of witness including the rules relating to cross examination is also applicable in arbitration. The tribunal may also seek assistance from the Court in obtaining evidence under Section 27 of the Arbitration & Conciliation Act, 1996.
The claimant’s claim and the respondent’s answer to the claim must attach the evidence or proof supporting their positions and include a request for the production of evidence during the proceedings. The LAM does not contain specific rules regarding means of evidence and, therefore, the provisions of the Organic General Code of Procedures and the regulations of the arbitration centers are applicable in this regard. Local judicial courts play no role in obtaining the evidence. All the evidence is ordered by and produced trough the arbitration tribunal.
There is no concept of disclosure in Egyptian evidence law that is similar to the common law concept of disclosure. However, courts are entitled, at the request of a party, to order disclosure of a specific document, which must be identified (that is, no "fishing expeditions" are permitted). The same principles apply to arbitrations conducted in Egypt. The parties can determine the rules on disclosure in the arbitration agreement, or as part of the mutually agreed arbitration procedures in the course of the arbitration process.
The parties are responsible for clarifying the facts of the case, and are entitled to present the evidence they wish. The arbitral tribunal may refuse to consider evidence which is obviously irrelevant to the case, and the tribunal may also limit the presentation of evidence if the extent of the evidence offered is disproportionate to the significance of the evidence and the case.
The arbitral tribunal, or a party with the consent of the arbitral tribunal, may request the courts to obtain statements from parties and witnesses, as well as other evidence.
Unless otherwise agreed by the parties, the arbitral tribunal shall decide on admissibility, relevance and weight of any evidence, as well as whether to schedule and hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents.
The arbitral tribunal, or a party with the approval of the arbitral tribunal, may request legal assistance from a competent national court in taking evidence that the arbitral tribunal itself could not take.
As described above in questions number (23) and (20), under Cap.4 the Courts have powers and a role to play in relation to evidentiary matters in domestic arbitrations. The Courts may, inter alia, order to disclosure of documents, preserve evidence, obtain evidence under oath to be used during arbitration proceedings, and order a third party to to appear for examination or to present any document.
Under section 18 of the ICA Law, the arbitral tribunal has to treat the parties equally and provide them with every possible opportunity to appear and present their case. Unless otherwise agreed between the parties, the tribunal can decide as it sees fit, the way the arbitral proceeding will be conducted and anything else relevant to the evidence submitted before it. The arbitral tribunal or the parties may also request from the Court its assistance in obtaining evidence, and the Court may assist within the framework of its jurisdiction and on the basis of the rules which govern the obtaining of evidence.
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 to 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.
Unless otherwise agreed by the parties, pursuant to Article 816-bis CCP the arbitral tribunal has the power to conduct the arbitral proceedings in the manner that it deems the most appropriate, including with regard to evidentiary matters.
Under Article 816-ter CCP, if a witness refuses to appear before them, the arbitrators may seek an order from the President of the Court of First Instance at the seat of the arbitration. Courts may also grant evidentiary assistance before the commencement of the arbitration, for example, ordering the collection of evidence in case of urgency.
Evidence in Nigeria is generally regulated by the Evidence Act, 2011. There are other statutes and various rules of courts regulating the taking of evidence in Nigeria. However, these statutes do not apply to proceedings before an arbitral tribunal. The rules of evidence that would be applied by an arbitral tribunal therefore are (a) any rules arising from or referred to in the parties’ arbitration agreement, (b) evidential principles, (c) such rules as the arbitral tribunal may direct or (d) a combination of these rules and principles.
Subject to any agreement to the contrary, the arbitral tribunal will decide whether the arbitral proceedings will be conducted: (i) by holding oral hearings for the presentation of evidence or oral arguments; (ii) on the basis of documents and other materials; or (iii) by both holding oral hearings and on the basis of documents. The tribunal has the power to determine the admissibility, relevance, materiality and weight of any evidence placed before it.
Where there is a need to compel the attendance of any person to give evidence at the arbitral proceedings, whether to testify or produce document, an application can be made to court to compel such person to appear and give evidence in the arbitration. Nigerian courts are empowered to compel attendance of witnesses or production of documents before arbitral tribunals. See section 23 of the ACA.
There are no particular rules governing the taking of evidence in arbitration in Austria. Domestic courts may be asked for help in making witnesses appear or testify under oath or also in the enforcement of document production orders.
There are no particular rules of law governing evidentiary matters in arbitration. In general, ‘[a]rbitrators are accorded great deference in their evidentiary determinations, and need not follow all the niceties observed by the federal courts.’ Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99 (2d Cir. 2013). Institutional rules often include provisions regarding evidentiary matters, which typically are subject to any contrary provision of the parties’ agreement.
With respect to obtaining evidence, section 7 of the FAA empowers arbitrators to summon a witness to appear and testify at an arbitration hearing (and to produce documents at such hearing), and provides further that the US district court for the district in which the arbitration is seated may enforce such summonses. (There presently is a split of authority regarding (a) whether the FAA empowers an arbitrator to compel pre-hearing discovery, and (b) whether the territorial limits that apply generally to a federal court’s ability to subpoena witnesses apply to subpoenas issued under the FAA.) Some state statutes also provide for judicial enforcement of arbitrator subpoenas, typically limited to the territory of the state in which the arbitration is seated, but law on this issue is unsettled.. In practice, parties to an arbitration may have difficulty enforcing arbitration subpoenas against out-of-state non-party witnesses.
Both in domestic as well as in international commercial arbitral proceedings the maxim of the procedural autonomy of the parties allows them to designate at will the evidentiary proceedings to be followed. Absent such a designation, the arbitral tribunal determines the appropriate evidentiary proceedings. In almost all cases, the arbitral tribunal would consult with the parties and seek their consent with regard to evidentiary matters.
Both the parties as well as the arbitral tribunals are free to designate a unique evidentiary proceeding tailored to the dispute at hand or to choose from sets of evidentiary rules which are readily available and adopt them as a whole or with certain deviations. The latter is obviously the rule both in domestic as well as in international commercial arbitral proceedings. That being said, in domestic arbitration the parties and the arbitral tribunals tend to opt for the relaxed, yet not sophisticated, evidentiary rules which are applicable to State Court interim relief proceedings under the GrCCP. In international arbitral proceedings the parties and the arbitral tribunals tend to opt for sophisticated sets of rules amongst which the IBA Rules on the Taking of Evidence in International Arbitration hold a prominent position.
Both in domestic as well as in international commercial arbitral proceedings having their seat in Greece court intervention is provided for by article 888 CrCCP and article 27 L. 2735/1999 respectively, in order to facilitate and aid the taking of evidence. The competent Court is the Court of Peace in the district of which the procedural acts for the taking of evidence are to be carried out. That being said, it should be noted that the arbitral tribunal maintains full control over the evidentiary proceedings. The intervention of State Courts is reserved only with regard to evidentiary rulings and actions that may not be taken by the arbitral tribunal because they entail the imposition of penalties for not compliance or the use of coercive means to secure the taking of evidence. Such instances constitute the exception rather than the rule.
Under the Israeli law, there are no specific laws applicable to evidentiary matters in arbitral proceedings. Under the arbitration agreement the parties may agree on the legal procedures that would apply to the arbitration agreement, including, for instance, the applicability of the substantive law and evidence laws that apply at the court also to the arbitral proceedings. In the absence of agreement on such issues, the Israeli law provides that the arbitrator will not be bound by the substantive law, evidence laws and legal procedures prevailing at court.
With respect of the court's jurisdiction to assist with evidentiary matters, see answer to question 23 above.
The 1996 Act provides that (subject to the parties' agreement) it is for the tribunal to decide whether to apply strict rules of evidence as to the admissibility, relevance or weight of any material (oral, written or other) sought to be tendered on any matters of fact or opinion, and the time, manner and form in which such material should be exchanged and presented (s.34(2)(f)).
In support of the arbitration, the local courts may assist in the obtaining of evidence such as securing attendance before the tribunal of a witness (s.43) and have the power to make orders in relation to evidence (s.44).
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.
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, either party may apply to the court for the collection of the evidences with the approval of the sole arbitrator or the arbitral tribunal.