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 (3rd edition)
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.
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.
Cap. 4 and Law 101/1987 have clauses that regulate evidentiary matters in the arbitrational proceedings. The local Courts have a fundamental role in obtaining evidence and their protection. They may order parties to disclose documents concerning the dispute or command a third party to be examined for evidentiary matters. The Court may also assist the parties to obtain evidence upon their request.
Obtaining evidence during arbitral proceedings is rather complicated, as according to Section 20 (1) of the Arbitration Act arbitrators may interview witnesses, experts and the parties only if they agree. Other evidence may be collected by arbitral tribunals only if it is provided to them.
To the extent that the arbitral tribunal is not able to collect the evidence itself, it may file an application with the competent state court for evidentiary assistance (Section 20 (2) of the Arbitration Act). The state court will comply with such request, unless such collecting of evidence is prohibited by law.
Evidence is usually heard before all arbitrators during the arbitral hearings. Witnesses and experts need not testify under oath.
The arbitral tribunal is not vested with the right to apply any financial sanctions (as are the national courts of law) in case the witnesses or the experts do not appear in front of the tribunal. In order to enforce such measures, the parties have to file a claim before the local tribunal whose jurisdiction covers the seat of the arbitration.
The arbitral tribunal is also entitled to order the production of certain evidence or request written information from public authorities.
In case of refusal of the public authorities to grant such information, the party will have to lodge a court claim in order to obtain such an order.
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 do not object, they may also be examined outside the hearing. The tribunal cannot impose penalties against a witness refusing to give testimony.
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. Experts can be challenges in the same procedure as it is prescribed for the challenge of arbitrators.
At the request from the tribunal, local courts may assist in obtaining the evidence. In that case, the court may use the power vested in him to fine or summon a witnesses in order for him to give a testimony which is to be used in arbitration proceedings.
According to Article 43 of the Arbitration Law, a party bears the burden to produce evidence to support its claims or defenses or both. The tribunal may also request or collect evidence itself if it considers it necessary. Article 45 further provides that the parties shall produce all the evidence at the hearing in order to allow them to examine each other’s evidence. The Arbitration Law does not expressly provide if a party may request documents from the other party.
Article 7 of the CIETAC Guidelines on Evidence allows a party to request the tribunal to require the other party to disclose specific documents or documents within a specific scope, provided that the request is specific and clear and that the evidence to be disclosed is relevant and important. This is similar with the relevant disclosure rule in the IBA Rules on Taking Evidence. In addition, according to Article 11 of the CIETAC Guidelines on Evidence, a tribunal may request a party to disclose any necessary evidence or collect evidence itself.
There is no provision in the PRC Arbitration Law or any other legislation allowing the Court to intervene in the obtaining of evidence. However, as mentioned above, the Court can adopt measures to preserve evidence.
a. Prior to the confirmation of the Arbitrators an interim arbitrator may be appointed to obtain evidence or decide on interim measures when this cannot await the confirmation of the arbitrators.
The Arbitral Tribunal may request the local courts to assist in the obtaining of evidence when necessary.
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. However, this possibility is hardly ever used in practice.
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 - Federal
Article 36 of the UAE Arbitration Law provides for an Arbitral Tribunal, upon its own initiative or pursuant to a party’s request, to seek the court’s assistance in taking evidence.
A witness may, therefore, be required to appear before the Arbitral Tribunal, to:
‘submit oral testimony’; and/or
‘present documents or any evidence thereof’.
The request submitted to the president of the Court, may decide on the following:
‘a-Sentencing the witnesses who fail to appear or abstain from answering without legal justification with the penalties prescribed in the applicable laws in the State.
b-Rendering a decision requiring a third party to produce a document in his possession which is significant to resolve the dispute.
c-Issuing a letter rogatory’.
Whilst rarely exercised, these powers allow, in theory, an Arbitral Tribunal to access to the local courts and require the production of evidence.
UAE - Free-zone 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 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 exercising their power to make orders in relation to evidence (s.44).
Neither the KSA Law of Arbitration, nor its Implementing Regulations, nor the SCCA Arbitration Rules impose limitations on evidence, assuming such evidence does not violate principles of Sharia.
The FAA does not contain evidentiary rules. In general, arbitrators have great latitude when it comes to managing, obtaining, and evaluating evidence. Institutional rules often provide evidentiary guidelines.
Under the FAA, arbitrators have the power to summon witnesses to appear, testify, and produce documents at an arbitration hearing. 9 U.S.C. § 7. The US district court for the district in which the arbitration is seated is required to enforce such summons. Some state statutes also provide for judicial enforcement of summons issued by arbitrators.
Austrian arbitration law does not contain any particular provisions regarding the collection and submission of evidence. It is up to the arbitral tribunal to decide upon the admissibility of evidence, and to determine its relevance, materiality and weight.
In practice, extensive discovery is rare in international arbitrations conducted in Austria; whereas document production, the use of written witness statements and cross-examination are widely practiced. Often, the IBA Rules on the Taking of Evidence in International Arbitration are referred to as guidelines.
In general, arbitral tribunals do not have any powers of compulsion but may instead request the courts’ assistance regarding judicial acts, including the collection of evidence or interrogation of a witness. Court assistance includes requesting legal assistance by a foreign court or by another authority on behalf of an arbitral tribunal.
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 and (d) or 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.
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. 34.º (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. 38.º LAV).
Although Russian law does not provide for disclosure/discovery, a tribunal may at the request of one of the parties or at its own discretion ask for additional evidence from the parties.
Except when otherwise agreed by the parties or the rules of a relevant arbitral institution so provide, all matters regarding evidence disclosure, privilege, use of witness statements, as well as admissibility, relevance, and weight of the evidence are decided by the arbitrators at their discretion.
The courts are entitled to assist in evidence-gathering only to an arbitration administered by an arbitral institution that has received a governmental authorisation. A request for judicial assistance may be filed by either the tribunal itself or a party acting with the tribunal’s consent. However, the scope of judicial assistance is limited to written (documentary), physical evidence or other documents/materials, and does not cover witness testimony. Furthermore, a request for judicial assistance will be refused if it seeks the gathering of inadmissible evidence, information that constitutes а state secret, or confidential or privileged information relating to non-parties, granting of the requested evidence may violate the non-parties’ rights, or а dispute at hand is non-arbitrable.
In accordance with Article 27 of the Model Law, the Irish courts will assist an arbitral tribunal with regard to taking evidence. This includes arbitrations being held outside Ireland. The High Court has the same powers as it has in any action of matter before it. Unless otherwise agreed by the parties, the High Court will cannot make an order for discovery.
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.
German law does not stipulate specific rules governing evidentiary matters in arbitration. The taking of evidence is subject to party autonomy. The parties are free to determine the admissibility and details of taking evidence. Absent any party agreement, the arbitral tribunal has broad discretion to decide on the admissibility, relevance and methods of taking evidence (section 1042 (4) ZPO) without being bound by procedural rules applicable for state courts.
Local courts (Amtsgerichte) may play a role in the obtaining of evidence. Sec. 1050 ZPO states that the arbitral tribunal or a party with the approval of the arbitral tribunal may request assistance from a local court in taking evidence which the arbitral tribunal is not empowered to carry out. The state court may hereby assess whether the arbitral tribunal itself would have been able to conduct the requested measure. If the state court considers itself competent, it will take the requested measure without any further review whether the measure is necessary for the progress of the arbitral proceedings.
The local court may, however, be entitled to refuse assistance to the arbitral tribunal if the requested measure contravenes German procedural law, e.g. if the arbitral tribunal asks the local court to conduct a US-style discovery of documents.
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 Croatian national court in the taking of evidence that the arbitral tribunal itself could not take.
Under Article 19(2) of the 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 CAM Santiago 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 the 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.
The Special ADR Rules authorizes the local courts to assist in the taking of evidence in an arbitration, since the arbitral tribunal does not possess compulsory processes unlike the local courts. The assistance may be sought at any time during the course of the arbitral proceedings when the need arises .