Rules of Evidence in International Arbitration

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Assessing the evidence, burden of proof, adverse inferences and procedural good faith

Assessing the evidence, burden of proof, adverse inferences and procedural good faith

7.01 It is generally recognised that arbitrators have great freedom to determine the admissibility of evidence and weigh its probative value in the light of the circumstances of the case and arguments of the parties. The deference given to arbitrators notwithstanding, there remain outer limits on a tribunal’s authority to weigh and admit evidence as defined by principles of due process. The initial portion of this chapter considers the general grant of discretion as set forth in article 9.1 of the IBA Rules, with regard to due process issues, and also discusses commonly accepted principles utilised by tribunals in the weighing of evidence. 7.02 An issue not considered under the IBA Rules, but yet still one of considerable interest in international arbitration is that of the burden of proof. The phrase “burden of proof” itself may lead to confusion, as it is often used in different contexts and with varying meanings. It is a subject to which commentators, practitioners and arbitrators alike often apply interpretations based upon their own domestic legal backgrounds which has led to a variety of opinions on how the burden of proof may be allocated in international arbitration. Yet despite what may seem like a great diversity of views on this topic, a review of the case law reveals that consistent and widely accepted principles relating to this issue. These rules will be discussed further below. 7.03 A topic closely connected to the issue of the burden of proof is adverse inferences. An adverse inference is a tool available to arbitrators that has the dual function of both enforcing procedural discipline as well as serving as a means for arriving at specific findings on the merits of the dispute. IBA Rules articles 9.5 and 9.6 consider the issue of adverse inferences and are discussed further in this chapter. 7.04 While adverse inferences may be used to sanction a party for failing to abide by its duty to provide evidence to the tribunal, so too may awards on costs. In 2010, the Review Subcommittee included article 9.7 in the revised Rules, which affords the tribunal the right to award costs against a party because of a failure to participate in good faith in the taking of evidence. “Good faith” is a phrase that is prone to wide-interpretation; therefore, the final portion of this chapter considers some of the inherent evidentiary procedural principles integral to that concept.

The general authority of the tribunal to admit and weigh evidence

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Article 9.1 2010 IBA Rules: Related Rules
The Arbitral Tribunal shall determine the admissibility, relevance, materiality and weight of evidence.
Article 19(2) UNCITRAL Model Law: 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.

General discussion

7.05 Article 9.1 confirms the principle that the authority over evidentiary procedure ultimately rests with the tribunal. This power is circumscribed only by the agreement to arbitrate and mandatory law. Most modern arbitration rules affirm a tribunal’s latitude to determine the admissibility, relevance, materiality and weight of evidence. In this respect, article 9.1 of the IBA Rules follows accepted practice and is relatively uncontroversial. As many of the issues broadly highlighted in article 9.1 are dealt with in detail in , the section below discusses the general authority vested in the tribunal to weigh, exclude or admit evidence.

A tribunal’s general authority to determine admissibility and the limits of discretion

7.06 As article 9.1 affirms, an international tribunal is vested with authority to determine the admissibility of evidence.1 It is widely accepted that an arbitral tribunal is not constrained by rules of court procedure practised in the jurisdiction of the seat, nor those jurisdictions where the parties have their domicile. This is particularly true with regard to questions over the admissibility of evidence, as was affirmed by an ICC arbitral tribunal when it ruled to admit the diaries of a relevant witness over the objections of the adverse party:

This is an international arbitration procedure. The strict rules of evidence, as they apply in England where the Tribunal is sitting, or in India, do not apply. In accordance with the power given

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to the arbitrators in the Terms of Reference, and under the ICC Rules, the Tribunal has the right to determine whether and what evidence shall be admitted. The Tribunal considers that the diary notes of Dr. Y and Dr. V are admissible. They were used as an aide memoire by Dr. Y as to what occurred and were explained to the Tribunal. P had the opportunity to cross-examine him on that evidence. It is up to the Tribunal to give to those diary notes whatever credence and weight it considers appropriate. The notes are not in themselves proof of what was discussed, but do indicate and support the evidence given by Dr. Y. Furthermore, and in any event, the Tribunal does not consider that the Indian Evidence Act has any relevance to the conduct of and the admission of evidence in this arbitration.2

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