Rules of Evidence in International Arbitration

Nathan D; O'Malley; LLM

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CHAPTER 3 Document production in international arbitration

Introduction

3.01 As a general rule, documentary evidence is often afforded the highest level of credibility within international arbitration.1 The preference for the written word over oral testimony is not something unique to the modern era of international arbitration, but is derived from the practices and procedures of some of the earliest arbitral tribunals and commissions. International tribunals from the nineteenth and early twentieth centuries, including “mixed commissions”, often incorporated into their rules a stated preference for evidence to be submitted primarily in written form and, in one particular instance, actually prohibited the introduction of oral testimony save for exceptional circumstances.2 One of the foremost experts on early arbitral procedure summarised this practice by stating, “probably the most outstanding characteristic of international judicial procedure is the extent to which reliance is placed upon its written word, both in the manner of pleadings, and of evidence, but especially the latter.”3 3.02 This stands in marked contrast to the traditions followed in common law jurisdictions, which often regard oral witness testimony as indispensable. Documentary evidence in those jurisdictions is often introduced only after a foundation establishing its reliability has been laid using witness testimony. This is not the case in countries that take their legal heritage from the civil law tradition. There, witness testimony is clearly supplemental to documentary evidence, which is given greater weight. 3.03 International arbitration has adopted the civil law’s preference for documents, but this is not to say that the common law has not influenced the manner in which

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documentary evidence is treated. Despite resistance, the practice of adverse document disclosure, which is to say requiring a party to produce evidence it has not voluntarily produced on its own, has become accepted within international arbitration.4 Such procedures are largely foreign in civil law jurisdictions, whereas those that have common law backgrounds recognise the principle of disclosure as akin to the process of discovery. As will be discussed below, there are some fundamental differences between document disclosure as it is practised in domestic courts and as it is customarily applied in international arbitration. 3.04 When a subcommittee was formed in 2008 by the International Bar Association to review and revise the popular 1999 IBA Rules, particular attention was paid to article 3, the portion of the Rules that primarily pertains to the production of documentary evidence. Often considered the mainstay section of the Rules, article 3 contains the most widely used body of accepted practices governing the introduction and production of documentary evidence in international arbitration today. The following chapter considers article 3 of the Rules, and other principles which are applicable to the taking and production of documentary evidence in international arbitration. It should be noted that objections to the production or admissibility of evidence are dealt with more extensively in .

General considerations regarding production of documentary evidence

Article 3.1 2010 IBA Rules:	Within the time ordered by the Arbitral Tribunal, each Party shall submit to the Arbitral Tribunal and to the other Parties all Documents available to it on which it relies, including public Documents and those in the public domain, except for any Documents that have already been submitted by another Party.
Related Rules
Article 20(4) UNCITRAL Rules:	The statement of claim should, as far as possible, be accompanied by all documents and other evidence relied upon by the claimant, or contain references to them.
Article 21(2) UNCITRAL Rules:	The statement of defence shall reply to the particulars (b) to (e) of the statement of claim (article 20, paragraph 2). The statement of defence should, as far as possible, be accompanied by all documents and other evidence relied upon by the respondent, or contain references to them.

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General discussion

3.05 The customary approach in international arbitration is that a party is expected to produce the evidence on which it intends to rely.5 This is naturally the case since parties must substantiate their allegations with evidence in order to meet their respective burdens of proof.6 Only if the tribunal has authorised it ahead of time, or the parties have agreed as much, should a party assume that representations of counsel, or summaries of the relevant documents, will be adequate in lieu of producing the documentary evidence on which it relies to support its arguments.7 Article 3.1 restates this important principle of international

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arbitral procedure by obliging parties to submit those documents into the procedure upon which they rely, with the exception of those documents submitted previously into the procedure by another party. 3.06 In addition to the above, article 3.1 sets out another core principle underlying evidentiary procedure in international arbitration; namely, that control over the evidentiary procedure rests with the tribunal provided it acts within the boundaries of the mandatory law and the parties’ agreement to arbitrate.8 In this context article 3.1 requires a party to submit the evidence on which it intends to rely “within the time” ordered by the tribunal. Past decisions by arbitral tribunals denying the admissibility of evidence tendered by a party because it was submitted after a deadline have been upheld by reviewing courts as consistent with due process principles.9 Furthermore, as the IBA Rules themselves make clear, a tribunal is under a duty to administer an efficient and economical procedure, which may be understood generally to include holding the parties to filing deadlines (see comments to article 9.2(g)).10 Failure to maintain timetables may cause

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substantial delay. A tribunal that permits evidence to be filed late likely must grant the opposing party time to comment on the new evidence and introduce counter-evidence into the record.11 An example of factors that a tribunal must weigh when confronted with a late submission is summarised in the following statement by the chairman of an ICC arbitral tribunal:

The arbitrators have a duty to take into account the fundamental right of each party to present its case properly, but they also have a duty to ensure that the arbitration progresses at a reasonable pace and to avoid unwarranted or deliberate delays. If a party which has had ample opportunity to prepare its case or to submit requests to the arbitral tribunal at an earlier stage of the proceedings, applies to a tribunal, belatedly and without giving legitimate reasons for its tardiness, with requests which are liable to cause substantial delays, it may well be the duty of the arbitrators to continue the arbitration without accepting the request of the tardy party.12

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