Are there particular rules governing evidentiary matters in arbitration? Will the local courts in your jurisdiction play any role in the obtaining of evidence? Can local courts compel witnesses to participate in arbitration proceedings?
International Arbitration (4th edition)
Neither the LICA nor the NCCC contain default rules governing evidentiary matters in arbitration proceedings. Thus, the parties are free to agree on it (for instance, the parties may agree to apply or use as guidelines the IBA Rules on the Taking of Evidence in International Arbitration).
Local courts are empowered to give assistance in order to obtain evidence if the arbitral tribunal requests it, including compelling a witness to provide testimony.
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.
ICAA rules on the taking of evidence are rather general. So the arbitration court usually applies the evidentiary rules agreed by the parties or, in the absence of such agreement, the rules determined by the tribunal and notified to the parties. It is common for the parties to use some rules of CPC on the taking of evidence, which are usually agreed or determined as the applicable ones.
Art.37 of ICCA allows the tribunal and a party with the tribunal’s approval to request from the competent court of law to take relevant evidence. This opportunity is used usually for the disclosure of documents from a non-party in the proceedings. However, the court may not require the attendance of witnesses before the arbitral tribunal.
Interesting situation would arise where the arbitral proceedings are seated in Bulgaria, while the necessary evidence is not within the competence of the local courts, but foreign ones. Then the Tribunal shall still request collecting evidence from the local courts and the local courts would then apply for cooperation with the foreign court by virtue of the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters or Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.
Subject to the agreement of the parties and procedural fairness, the arbitrator has discretion to determine the rules regarding the admissibility and weight of evidence. International arbitrations in Canada often refer to the IBA Rules on the Taking of Evidence in International Commercial Arbitration for guidance. Evidence is typically given under oath and is subject to cross-examination. Where expert evidence is needed, reports are typically exchanged prior to the hearing. Although the arbitral tribunal has the authority to appoint its own experts, that power is rarely exercised.
The arbitral tribunal can ask the local courts for assistance in the taking of evidence, and local courts can compel witnesses to appear for oral questioning in the arbitration or produce evidence. The court will generally assist so long as the evidence sought is consistent with the jurisdiction’s evidentiary rules.
(a)There are no specific rules regarding the submission and admissibility of evidence set out but evidence law as applied in the civil jurisdiction of the Cyprus Courts tend to be taken into consideration and generally adhered to.
(b)Under Article 27 of Law 101/87, the arbitral tribunal, or one of the parties with the approval of the tribunal, may request the assistance of the Court in the process of collection of evidence. The Court may satisfy the party’s claim within its jurisdiction and according to the provisions set out regarding the collection of evidence.
(c)Article 17 of Cap. 4, provides that each party of the arbitration agreement may refer to the Court for the issuance of a warrant that compels any witness to appear in Court in order to be examined or to present any document.
UAE- Federal Jurisdiction
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 - Common Law 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).
If a witness is in the UK and the arbitration is conducted (not necessarily seated) in England & Wales, parties may rely on domestic courts to compel the attendance of witnesses before the tribunal under s.43(1) of the 1996 Act. This provision also allows courts to compel witnesses to produce documents. However, these powers may only be exercised with permission of the tribunal or by agreement of the parties.
Under s.44 of the 1996 Act, where a witness is overseas, the English Court can issue a Letter of Request to ask a foreign court to examine a witness in that court’s jurisdiction. The English Court will also enforce Letters of Request from foreign courts and can require a witness to be examined and to provide documents.
Art. 19 of the UNCITRAL Model Law (Determination of rules of procedure) provides that:
(1) ‘Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.
(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.’
As such, the rules of procedure are generally subject to agreement by the parties or selection by the tribunal. In addition, under s 13(2) of the IAA, ‘[t]he High Court or a Judge thereof may order that a subpoena to testify or a subpoena to produce documents shall be issued to compel the attendance before an arbitral tribunal of a witness wherever he may be within Singapore’, although s 13(4) provides the additional qualification that ‘[n]o person shall be compelled under any such subpoena to produce any document which he could not be compelled to produce on the trial of an action’.
Arbitral tribunals have the power to determine admissibility, relevance, and weight of any evidence under the Arbitration Act (the “Act”) (Article 20 of the Act; see also Article 26(4) of the KCAB International Arbitration Rules (the “Rules”)). Unless otherwise agreed by the parties, Arbitral tribunals may also: (i) appoint an expert witness; (ii) require parties to provide information, documents, or other evidence to the expert; and (iii) require the expert to participate in a hearing (Article 27 of the Act). In an arbitral proceeding administered under the Rules, the arbitral tribunal may order either party to (i) produce documents, exhibits, or other evidence; (ii) make any real property or object under the party’s control available for inspection; and (iii) deliver a summary of evidence the party intends to submit (Article 26 of the Rules).
Arbitral tribunals can also seek assistance of a court in the taking of evidence either on its own initiative or upon party request by sending a written request to examine evidence, in response to which the court may order witnesses and custodians of documents to appear before the arbitral tribunal or submit evidence to the arbitral tribunal (Articles 28(2) and 28(5) of the Act). If a court examines evidence pursuant to the request of an arbitral tribunal, the court may permit the arbitrators or the parties to attend the examination, and the court must provide the arbitral tribunal with certified records of the examination after such examination (Articles 28(3) and 28(4) of the Act).
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. Section 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.
According to section 19 of the Arbitration & Conciliation Act, 1996, which mandates that the rules of Evidence Act are not applicable in arbitration. Additionally this grant of power to arbitrator is to determine the admissibility, relevance, materiality and weight of any evidence. 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. In the case of State of Madhya Pradesh v. Satya Pal held that “fundamental principles of natural justice and public policy” would apply, though the technical rules of evidence contained under the Indian Evidence Act would not apply. Furthermore, the tribunal may also seek assistance from the Court in obtaining evidence under Section 27 of the Arbitration & Conciliation Act, 1996.
The court may make an order requiring third parties to provide evidence directly to the tribunal. It was held in M/s National Insurance Company Limited vs. M/s S.A. Enterprises and further upheld in Thiess Iviinecs India vs Ntpc Limited & Anr. that
“41. The purpose of Section 27 of the Arbitration Act, in my view, is to provide assistance to the arbitral tribunal or to a party in taking evidence with a view to expedite the arbitral proceedings. Merely because the arbitral tribunal has no power to issue a witness summons or to compel the attendance of the witnesses, the parties should not suffer. The legislature has inserted the Section 27 of the Arbitration Act to avoid this inconvenience to the parties to the arbitral proceedings and has thus empowered the arbitral tribunal as well as the parties to take assistance of the Court. The Court is empowered to issue direction to a party or even third party to produce documents or witnesses by summoning the party or even third party if the arbitral tribunal has granted permission and is of the opinion that production of such documents or evidence of such party including third party would be necessary for proper and effective adjudication of the dispute before it.”
The examination of evidence will largely depend on what the parties have agreed concerning the procedural rules. The Arbitration Law does not specify the rules for evidentiary matters, merely stating that examinations of factual and expert witnesses shall be conducted in accordance with the Indonesian code on civil case procedure, whereby witnesses are required to provide statements under oath directly to the tribunal.
The tribunal is empowered to request the parties to provide additional written statements and supporting evidence as required (Article 46(3) of the Arbitration Law) while local courts have no authority to intervene on the taking of evidence. Likewise, local courts do not have the authority to compel witnesses to attend arbitration proceedings.
As a general matter, the arbitral tribunal has wide discretion (within the limits imposed by the parties in that respect) to structure the evidentiary proceedings. Unless otherwise agreed by the parties, the arbitral tribunal decides whether an oral hearing shall take place or whether the proceedings are to be conducted in written form only. It is up to the arbitral tribunal to decide on the admissibility of evidence, to conduct evidentiary proceedings and to consider their outcome at its discretion (see § 616 Liechtenstein CCP). Furthermore, the arbitral tribunal may appoint expert witnesses and may obligate the parties to provide all relevant information to them.
If made applicable by the parties, the Liechtenstein Rules contain further provisions on the conduct of evidentiary proceedings which refer to the respective provisions of the Liechtenstein CCP governing the taking of evidence in ordinary court proceedings (see Article 18 of the Liechtenstein Rules and §§ 303 et seq. Liechtenstein CCP).
However, as an arbitral tribunal lacks sovereign powers, it may neither compel the production of evidence such as the appearance of witnesses and their providing testimony, nor may it request a witness or expert witness to swear an oath. The arbitral tribunal may freely consider (e.g.) a witness’ refusal to provide evidence but has no authoritative power to coerce such witness to do so. In such cases, the arbitral tribunal or the parties, with the arbitral tribunal’s prior consent, may apply to the ordinary court for judicial assistance.
The Evidence Act 1950 (Evidence Act), which is the principal legislation governing rules of evidence in Malaysia, does not apply to proceedings before an arbitrator (see Section 2 of the Evidence Act). Section 21(3) of the Arbitration Act states that an arbitral tribunal is conferred with the power to, inter alia, determine the admissibility, relevance, materiality and weight of any evidence.
In respect to the court’s role in obtaining evidence, Section 29 (1) of the Arbitration Act allows any party, with the approval of the arbitral tribunal, apply to the High Court for assistance in taking evidence. In this respect, Section 29(2) provides that the High Court may order the attendance of a witness to give evidence, or where applicable, produce documents on oath or affirmation before an officer of the High Court or any other person, including the arbitral tribunal.
In general, arbitral tribunals have the right to undertake all necessary steps concerning evidentiary matters.
Parties can freely agree on the procedural rules applicable to the arbitration proceedings and confer specific powers on the arbitral tribunal.
Pursuant to FCCP Article 1467, the arbitral tribunal can order investigatory measures and hear any person. Moreover, the arbitral tribunal can order a party to disclose an element of evidence. Unless otherwise stipulated, the arbitral tribunal has the power to rule on a request for verification of handwriting or a claim of forgery in accordance with FCCP Articles 287 to 294 and Article 299 (FCCP Article 1470). Arbitrators may hear any person. Witnesses need not be sworn in before the arbitral tribunal (FCCP Articles 1469 and 1506). In the absence of specific indications in the arbitration agreement, the arbitral tribunal has broad discretionary power as regards the probative force of testimony (Fichtner GmbH & CO.KG. v LKSUR, Paris Court of Appeal, Pole 1 - 1st Chamber, 17 December 2009).
Local courts may assist in obtaining evidence. After the constitution of the arbitral tribunal, if any evidence, or official/ authentic (“acte authentique”) or private deed (“acte sous seing-privé”) is held by a third party, the President of the Tribunal de Grande Instance may intervene on a party’s request. (FCCP Articles 1469 and 1506). Prior to the constitution of an arbitral tribunal, the President of the Tribunal de Grande Instance (or of the Commercial Court), at a party’s request, may order measures related to the obtaining of evidence which might be used in a forthcoming arbitration (FCCP Articles 145, 1449 and 1506).
The EAL does not regulate the arbitrators’ powers with respect to evidence. It merely gives the arbitrators the right to request the originals of the documents submitted in support of the parties’ claims. (article 30) However, it is unequivocal that the arbitral tribunal enjoys the power to admit and weigh evidence. The arbitral tribunal’s powers include: undertaking any evidentiary procedure it deems appropriate, reversing a procedure it had previously ordered and the discretion to decide on the evidence on record. Arbitrators also have the right to accept or deny a party’s request for an order on evidentiary procedures without prejudice to the party’s defence rights. The evidence that may be admitted in arbitral proceedings in Egypt are documentary evidence, witness testimony, expert reports and/or site inspection by the arbitral tribunal. If a party does not submit to, and comply with, the orders of the arbitral tribunal, the latter may draw negative inferences that could adversely affect the non-complying party’s position, especially if no adequate or reasonable justification is provided for a failure to comply. An arbitral tribunal is entitled to seek an Egyptian court’s assistance in this respect, especially in cases of penalising witnesses who do not comply or ordering third parties to produce documents in their possession and/or undertake certain actions as properly and legally ordered by the arbitral tribunal insofar as the tribunal has jurisdiction to order same.
In this regard, the EAL grants the local competent court, upon the request of the arbitral tribunal, the authority to penalise and compel witnesses who declined to appear at the hearing for testimony. (article 37.1)
The Commerce Code, in its article 1435, states that the parties may freely agree on the procedure they want to be followed in the arbitration and in the absence of this agreement the arbitral tribunal has the liberty to conduct the proceedings as it may deem appropriate, this including evidentiary matters.
Pursuant to article 144 of the Commerce Code, local courts can assist the tribunal in the filing of evidence, if the arbitral tribunal or any of the parties, with the approval of the tribunal, request so.
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.
The parties submit relevant evidence to the arbitral tribunal. The arbitral tribunal (or the parties with the tribunal's acceptance) can request the local court's assistance in taking or hearing evidence.
All kinds of evidence are acceptable. The arbitral tribunal can refuse evidence that obviously has no significance to the case, and it can limit the production of evidence so that there is a reasonable relationship between the amount of evidence and the significance that the dispute has for the parties.
There is no strict standard of evidence during arbitration, except that all parties are required to be treated with equality and given a full opportunity to present their respective cases. (Art. 18, Model Law) The parties are free to adopt rules on evidence as they may prefer, such as the International Bar Association (IBA) Rules on the Taking of Evidence In International Arbitration.
Local courts have the power to render assistance to an arbitral tribunal with respect to taking evidence, such as issuing orders to direct a witness to comply a subpoena issued by an arbitral tribunal. (Rule 9, Special ADR Rules).
The Arbitration Law permits the parties to stipulate to the evidentiary rules of any international or national institution or to any country's laws. In the absence of such agreement, the arbitral tribunal will apply Sharia evidentiary rules.
In an ad hoc arbitration, the arbitration tribunal may request the competent court to assist in the arbitration proceeding as the tribunal deems appropriate for the arbitration process, including calling a witness or expert or demanding a document.
If the arbitration is administered by the SCCA, Article 20 of the Arbitration Rules of the SCCA provides, among other things, the tribunal with the authority to direct the order of proof or exclude cumulative or irrelevant testimony or other evidence and at any time during the proceedings, the tribunal may order the parties to produce documents, exhibits, or other evidence it deems necessary or appropriate.
The LAM does not provide anything regarding the practice of the evidence, so the parties and tribunals have commonly been free to decide what rules will apply for the practice of evidence, within which there is the possibility of applying "softlaw" rules as IBA rules on practice of evidence in arbitration. As well as in other matters, judges have no power to intervene in the practice of the evidence in arbitration.
The arbitrators may perform every such actions only with the consent of participating persons. No other rules are set forth. On the other hand, some of the permanent arbitration tribunals adopt their own rules concerning evidentially matters.
The courts may perform procedural actions on the basis of a special demand from the arbitrator, including the obtaining of evidence, which cannot then be performed by the arbitrator himself. The courts perform all actions except those explicitly inadmissible under Czech law.
Pursuant to Article 19(2) of the ICA Act, failing parties’ agreement, the arbitral tribunal may, subject to the ICA Act, conduct the arbitration in such manner as it considers appropriate. That provision adds that the power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.
According to Article 27 of the ICA Act, the arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.
In domestic arbitrations, local courts may also assist the arbitral tribunal, for example for the taking of witness evidence and for document production orders. Strictly speaking, local courts can compel witnesses to participate in arbitration proceedings. However, in practice, parties never file applications for compelling unwilling witnesses to declare due to strategical considerations.
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.
In such event, the state courts will either request a third party to produce the evidence requested in front of the arbitral tribunal or will itself hold an evidentiary hearing to collect the evidence. In the latter case, both the members of the arbitral tribunal, as well as the parties to the arbitration, may attend such evidentiary hearing and request the minutes of such a hearing. If a third party refuses to cooperate without justification, the court may, inter alia, impose a disciplinary fine, order the use of compulsory measures or impose the costs caused by such refusal on such third party.
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 GrCCP 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.
In line with parties’ freedom to determine rules and/or laws governing arbitration procedure, parties are able to tailor evidence production and submission stages by determining the procedure and timeline for submitting and gathering evidence. Parties may further execute an evidence agreement to determine which particular evidence shall be submitted for evidencing the particular facts. The arbitral tribunal may seek assistance from local courts in gathering evidence where it is necessary, e.g. to obtain information from local authorities, etc.
Arbitrators are empowered to appoint experts witnesses if they deem necessary. The tribunal can also decide to conduct on site examination.
Local courts cannot compel witnesses to appear before the arbitral tribunal.