WAINCYMER. Procedure and Evidence in International Arbitration

KluwerArbitration
Document information Part II: The Process of an Arbitration, Chapter 10:

Approaches to Evidence and Fact Finding
Publication 10.1 Introduction
Procedure and Evidence in
International Arbitration This chapter, and the following two chapters, look at issues of evidence, that is, the way
that facts are presented by parties and evaluated by a tribunal. These issues are
particularly important as the outcomes in most arbitrations are highly dependent on
Bibliographic factual determinations. (1) For example, claims as to faulty construction or manufacture,
misrepresentation, defences of force majeure, and the like are fundamentally dependent
reference on the factual findings that a tribunal will make. This will also be partially so with some
'Part II: The Process of an jurisdictional questions, such as claims to extend an arbitral agreement to non-
Arbitration, Chapter 10: signatories via a group of companies theory, agency or alleged assignment of arbitral
Approaches to Evidence rights. Choice of applicable law can also be heavily dependent on facts, particularly if a
and Fact Finding', in Jeffrey closest connection test is being employed to decide the applicable law. In most cases, a
Maurice Waincymer , tribunal will be asked to make factual determinations about past events. In some cases it
Procedure and Evidence in may also be asked to determine a future likelihood, such as a profit estimate for
International Arbitration, damages purposes. (2)
(© Kluwer Law There are two broadly related questions in relation to fact-finding. The first is the nature
International; Kluwer Law and amount of material that may be considered by a tribunal. As to nature, evidence can
International 2012) pp. 743 be categorised in a range of ways. Attention could be given to the physical form, such as
- 824 P 744 documents versus oral testimony. Chapters 11 and 12 deal respectively with
documentary evidence and general witness and expert evidence. Attention could be
given to its essential nature, whether objective or subjective. Attention could be given to
its relevance to the case, regardless of form. Attention could be given to its location and
to whom control can be attributed, if not admitted, as fact. There are related questions
as to who is to provide relevant evidence and the ramifications of a failure to do so. This
includes consideration of any independent fact-finding powers of the tribunal. Where
amount of evidence allowed is concerned, this is affected by general discretions aimed
at controlling costs and promoting efficiency, subject to the right of a party to present its
case and deal with that of its opponent. The second broad issue is the evaluative
methodology by which adjudicators come to make factual determinations where there is
conflicting evidence. This includes consideration of the probative value of each party's
evidence. This needs to be considered in the context of burden, standard and onus of
proof. Allied to this, are the proper inferences, positive, negative and adverse, which a
tribunal might appropriately draw when that evidence does not present a complete
picture. In the context of arbitration, these questions all need to be considered in terms
of party autonomy and the provisions in the lex arbitri or arbitral rules. Rules and
principles may expressly address questions of evidence, or may be implied from other
general principles that indirectly impact on evidentiary matters. These would include
mandatory norms of due process and general procedural discretions. Relevant
mandatory due process norms include the entitlement to an adequate opportunity to
present the party's case, the right to equal treatment and more contentiously, good faith
disclosure obligations.
There may also be evidentiary issues involving persons not party to the arbitral
proceedings, such as prospective witnesses or other third parties who may have relevant
documentary material in their possession or who may be able to attest to relevant facts.
Here there are important questions as to the powers that a tribunal might have to
compel the involvement of such persons. Whenever any duties or powers are considered,
it is also appropriate to consider the ramifications if parties do not comply with tribunal
directives, as this will impact upon the practical utility of the powers.
As is the case with most procedural topics being considered, there are important and
potentially conflicting policy questions that arise. For example, should there be any limit
on the amount of evidence that each party may wish to present, given their due process
entitlements? How should a tribunal deal with evidence that may be relevant but which
is suspected of being unreliable? What inferences are appropriate, both positive and
negative, as a result of material presented and as a result of material the parties choose
not to disclose?
There are a myriad of other similar questions in relation to which contentious choices
must be made, either in arbitral rules or under the application of arbitral discretions.
When legal systems determine how truth is to be assessed and how these questions are to
be answered, choices are inevitably made between conflicting values. As always,
questions of fairness and efficiency need to be balanced. Differing conceptions of
fairness must also be considered. To some, the pursuit of truth as an element of fairness
implies that a correct outcome is the most just. This approach would see few, if any,
P 745
limits on the amount of evidence. Yet concerns with efficiency suggest that some
reasonable limits should be imposed. Excessive cost could itself be unfair. There are also
1
© 2023 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
libertarian concerns as to whether a party, through disclosure, is required to assist its
opponent in developing its case. Some would rank truth higher than liberty, while others
would take the opposite perspective, arguing that a claimant should be required to have
sufficient evidence before interfering with the liberty of a respondent.
All legal adjudicatory systems make choices as to these important policy questions
through evidentiary rules dealing with admissibility and weight of evidence and burden
and standard of proof and also through the controlling discretions given to adjudicators.
Once a system selects a set of evidentiary rules, it thus identifies a methodology by which
an adjudicator determines truth in the face of conflicting factual assertions by the
parties. (3) Because we must find compromise policy positions in any set of rules, it is
particularly important to understand that differing rules about the nature of relevant
evidence and the inferences to be drawn will have a significant impact on the likely
factual conclusions. Identical scenarios in different legal systems can legitimately be
decided differently. Similarly, discretionary decisions by an adjudicator can impact upon
the body of evidence available for analysis and hence the likely outcome. Once it is
understood that any general rules and procedures are compromises, it must also be
acknowledged that their application may be unfair to one or both parties in a particular
case. (4) Hence no optimal model can readily be discerned. It is important to understand
that there is no absolute and objective truth discerned by any legal fact-finding
methodology. Thus, fact-finding in most instances of legal adjudication is very different to
fact-finding in physical science experimentation. (5)
There are a number of important conclusions that should be drawn from these
observations. First, because there must always be choices between tenable alternatives
and trade-offs between fairness and efficiency, extreme criticisms of any particular
model or arbitral decision based on assessment of failings as to a single goal, are usually
misguided. This is the typical logical flaw in most annulment or enforcement challenges
that are based on evidentiary issues. A second and related observation is that criticisms
from the perspective of one legal tradition addressed against another, can too easily
hone in on a negative aspect of the latter's trade-offs without a proper cost/benefit
comparison of each. The following section considers comparative perspectives in that
light.
P 746
10.2 Comparative Law Perspectives

Before considering the provisions in arbitral statutes and rules, it is valuable to analyse
the issues from a comparative perspective, particularly as differences between legal
families are probably greatest in relation to evidentiary matters. (6) That poses problems
for international arbitration where the parties come from different legal systems. In such
an environment, arbitration statutes and rules are unlikely to be too prescriptive, as this
would appear biased against certain legal families. Tribunals must therefore routinely
make factual decisions in the absence of any clear guidance in the rules. Critics then
raise issues about inconsistency and the application of unconstrained discretions.
The major differences in approach to evidence between legal families arise in relation to
primary responsibility for evidence presentation, rules on admissibility, obligations to
produce evidence of benefit to the opposing party, the type of witnesses that may
present evidence, the role of experts and methods and standards of proof. Where control
over evidence is concerned, the key difference between common law party-led or
adversarial systems and civilian judge-led or inquisitorial systems is that the former
historically left it to the parties to determine what evidence to present, while the latter
involved the adjudicator giving guidance as to the material thought most suitable.
Common law systems tend to oblige parties to present all relevant evidence, including
that which is adverse to their own interests, in part to deter misleading selectivity. Such
systems also provide rights to call for document production by the opposing party so that
all relevant material is before the tribunal. Civilian systems, however, leave it to the
parties to determine what information they wish to rely upon and have that supplanted
by evidence called for by the tribunal and do not require adverse evidence to be
produced as a matter of course. The systems will also differ in relation to the type of
evidence that may be presented. Common law systems have complex exclusionary rules
where the potential prejudicial value of evidence is presumed to significantly outweigh
probative value, in part because of historical use of lay jurors as fact finders. Common
law systems have also relied heavily on oral testimony, tested by cross-examination,
while civilian systems tended to give greatest weight to contemporaneous documents.
As is the case with all comparative law questions of significance, differences are often
oversimplified. Not all common law or civilian jurisdictions take the same approach. For
example, there are important differences between American and other common law
systems. Where the civil law is concerned, differences typically arise between Germanic
and Latin systems and even within such systems. (7) In addition, differences on a
particular issue often flow logically from choices made on other aspects of evidentiary
P 747 policy. For example, adversarial systems, which rely heavily on the material presented
by the parties, will more typically impose ethical obligations on them to produce all
evidence, including adverse evidence. Similarly, they are more likely to allow for
document production requests so that one party imposes checks and balances on
2
potentially inadequate disclosure of the other. In other cases, supposed differences in a
particular area are counterbalanced in others. For example, civilian legal systems have
no equivalent of the parol evidence rule which prevents oral evidence being used to alter
the meaning of written agreements, but distrust oral evidence per se, hence ending up in
a not dissimilar position. While civilians may be concerned with broad discovery rights,
particularly as against third parties, other processes may lead to similar results, for
example, where a court-appointed expert is invited to interview such persons and
consider their documentation.
At other times, suggested differences are misleadingly simplistic. A description of the
common law as being predominantly concerned with objective truth and hence
supporting the broadest range of discovery rights needs to be tempered with the
adversarial disposition which encourages the retention of key evidentiary material until
it can be presented with the most force and with the least opportunity for rejoinder. The
difference to the civilian approach is also less meaningful if civilian judges are prepared
to draw adverse inferences from failure to produce documents requested by the judge,
including adverse material. (8) Similarly, the supposed difference between each system's
preference for either contemporaneous evidence or oral testimony is largely overstated.
All systems would see contemporaneous evidence as highly valuable. It will also often be
the case in complex commercial matters that a combination of oral and written evidence
would be the only way to truly understand the issues in dispute. If the essential dispute is
as to what occurred in an oral discussion, there is no alternative but to call and test the
witnesses as to their recollections. (9) Consider the case of a joint venture dispute where
one party alleges oral misrepresentations prior to entering into the agreement. Each
agree that discussions were held, neither kept written records but disagree as to what
was said. Even if each can be viewed with suspicion, (perhaps an unfair presumption as to
human veracity and honesty), a priori, the concerns with each are counterbalanced. An
experienced arbitrator ought to be able to hear what they each say about the
conversation and form a view about it.
There are also arguable inconsistencies in the way each system preferences probity as
against prejudicial value in relation to various types of evidence. This is not to say either
or both are wrong in their range of choices but at least it can be said that neither system
is a likely optimal model for international arbitration if there is no rational basis for
P 748 internal inconsistencies. For example, it is interesting to juxtapose the civil law
exclusion of parties as witnesses with the common law's exclusionary rules of evidence
such as hearsay. In the common law, free allowance of party witnesses does not sit well
alongside exclusionary rules against hearsay in cases where juries are not involved.
Civilian concerns for the reliability of party-appointed experts because of a fee
relationship, may be hard to reconcile with support for party-appointed arbitrators,
particularly in ad hoc arbitrations. Concerns for discovery of adverse material need to be
balanced against an inquisitorial judge's right to ask for this.
In reality, the systems started from more polarised positions but tend to gravitate to
more common approaches over time. This typically arises because each system is
dealing with the same complex questions but took a different initial view of the
appropriate way to reconcile conflicting policy values. Each makes compromises that are
in part based on other cultural values and procedural features of the system. In seeking
compromises, no system uniformly and consistently prefers one value over others. Each is
typically dissatisfied with the resulting position and tries to find a more balanced
resolution. For example, while the common law typically left it to the parties to manage
the evidence and the process, the judiciary and legislature soon found that this was
inefficient and a drain on public resources. Hence, common law civil procedure reforms
have heightened the role of case management by the judiciary. (10) Such developments
at the domestic level can inspire arbitral rule reform or the exercise of arbitral
discretions, subject to the comparative law caution not to readily presume that
transplants of regulatory models will be desirable.
Finally there may also be merit in a comparative perspective that considers what the
parties from different jurisdictions would prefer and not simply what their lawyers have
been brought up to view with suspicion. That could well be relevant in a consent-based
system such as arbitration and could lead to quite different attitudes of parties as
opposed to counsel. For example, many common law clients may be surprised and
disappointed to hear about the hearsay and parol evidence rules while civilian clients
may be surprised and disappointed to hear that they are not entitled to give evidence,
being presumptively untrustworthy. Arbitration seeks to find a compromise position that
best fits with the reasonable expectations of the parties themselves. Because it is at
least arguable that each system has some inconsistent responses to the inevitable
compromises, there is much scope for international arbitration to help develop a more
coherent pattern.
10.3 Rights and Powers of the Parties and Tribunal as to Evidentiary Issues
As with each area of arbitral process, there is a need to consider the rights, duties and
P 749 discretions available to each person involved and determine how conflicting rights
are to be resolved. As always, there is a need to consider party autonomy and the law
governing the arbitration. Where the latter is concerned, there is an important gateway
3
question of characterising evidentiary issues as either substantive or procedural, as this
will determine which provisions are relevant. This will also have implications for
annulment and enforcement rights. This is addressed in the next section.
10.3.1 Are Evidentiary Questions Matters of Substance or Procedure?

Different legal systems do not all classify evidentiary issues the same way. The common
law tended to see them as procedural in nature, while some civilian systems treated
them as substantive questions. Most now acknowledge the difficulties in classification,
the possible dual nature of at least some evidentiary questions and the impact of
particular circumstances on the ultimate proper classification. For example, the Iran–US
Claims Tribunal in Teheran Redevelopment Corp. commented that notwithstanding a
governing law of the contract, ‘it is arguable that the type of evidence admissible to
establish a contract is a procedural or evidentiary matter.' (11) The tribunal considered
part performance and estoppel by conduct as examples of the latter, although not all
would agree.
The procedure/substance distinction may also be impacted upon by the presence or
otherwise of certain substantive rights to information applicable between the parties or
between the parties and public institutions. For example, each party in a joint venture
will typically have a right to all accounts and perhaps to have them audited. Direct
substantive provisions of this nature relating to evidentiary entitlements are quite
distinct from general approaches to evidence pertaining to other substantive obligations.
The distinction is not always clear-cut. Part of the complexity is that the substantive law
will always indicate which facts are in issue. This will also be the case with certain
specific contractual terms. (12)
Classification can affect the ambit of a tribunal's powers. To the extent that evidentiary
issues are a substantive matter, a tribunal might be under a more constrained discretion
than is the case with procedural matters. This is because provisions dealing with choice
of substantive law may require a conflicts methodology, albeit allowing the tribunal to
P 750 choose which conflicts rules to apply. (13) Conversely, substantive decisions are
generally less open to challenge on annulment or enforcement applications than
procedural determinations. However, a substantive decision is more likely to meet the
test of what constitutes an award, hence being enforceable or challengeable as the case
may be. (14) The substance/procedure distinction is considered further below in sub-
topics where it has particular importance.
10.3.2 Evidentiary Principles under Lex Arbitri and Arbitral Rules

10.3.2.1 General Provisions
Specific rules will be addressed throughout this and the next two chapters on a topic-by-
topic basis. In this section, only general observations are made. Most lex arbitri and
arbitral rules say very little about matters of evidence. A typical example is Article 25(1)
of the ICC Rules 2012 which merely provides that ‘the arbitral tribunal shall proceed… to
establish the facts of the case by all appropriate means.’ Some rules confer broad
discretions on arbitral tribunals subject to the contrary agreement of the parties. Article
19(2) of the UNCITRAL Model Law provides that ‘(t)he power conferred upon the arbitral
tribunal includes the power to determine the admissibility, relevance, materiality and
weight of any evidence.’ (15) Article 34(1) of the ICSID Arbitration Rules indicates that
‘(t)he Tribunal shall be the judge of the admissibility of any evidence adduced and of its
probative value.’ The IBA Rules of Evidence 2010 also provide for a residual broad
discretion where the rules are silent and the parties have not agreed otherwise. (16) The
LCIA Rules expressly indicate that the tribunal has a power to decide whether or not to
apply any strict rule of evidence. (17) Some rules make clear that a tribunal may call for
evidence and may undertake inspections as it sees fit. (18)
It is commonly accepted that broad discretions cover all necessary evidentiary powers
regardless of whether the rules expressly refer to particular matters such as documents,
witnesses, experts or inspections. The International Court of Justice has considered that a
tribunal generally has a broad discretion as to the way to approach the evaluation of
evidence. It has stated that ‘(t)he appraisal of the probative value of documents and
P 751 evidence appertained to the discretionary power of the arbitrator and is not open to
question.’ (19) That would not be so where the particular rules prevent a particular
evidentiary approach. While evidentiary discretions are interpreted broadly, even
express provisions need to be considered alongside broader discretions such as those
contained in Article 19 of the UNCITRAL Model Law, (20) and obligations under mandatory
norms discussed in the following section. The express rules also need to be looked at
alongside the general question as to whether a tribunal wishes to be proactive in relation
to evidentiary matters and the way tribunals will balance competing policy goals when
exercising discretions or making evidentiary rulings. Party autonomy is also important as
always. This is discussed in section 10.3.2.3 below.
10.3.2.2 Mandatory Norms
While tribunals have broad discretions subject to party choice, these are not without
constraints. Concern must always be had for mandatory procedural rules such as Article
4
18 of the UNCITRAL Model Law requiring equal treatment and an adequate opportunity
for presentation of one's case. (21) Different lex arbitri use differing terms to describe the
degree of this entitlement. While some commentators have raised concerns as to the
difference in terminology between a ‘full' opportunity to present a case (22) and
expressions such as a ‘reasonable opportunity’, (23) nothing should turn on this as the key
word is ‘opportunity’. (24) A full opportunity is not an open-ended one.
While such mandatory provisions are always paramount, they are difficult to apply. One
reason is that they can too easily be used casuistically by parties to argue for and against
any evidentiary ruling being sought. This is because where evidentiary issues are
concerned, the right to an opportunity to present a case and the right to equal treatment
can be argued to conflict when the two parties believe that there should be
fundamentally different ways in which to provide a reasonable opportunity. An example
would be if a tribunal is asked to consider whether to order production of a document
P 752 held by in-house counsel, where legal professional privilege is claimed and the
parties come from legal systems that take different views on the issue. Whichever
decision the tribunal comes to, the unsuccessful party might assert a violation of one of
these fundamental norms. While a reasonable annulment or enforcement court would not
accept most such arguments, the mere availability of a tenable challenge can influence
proceedings.
10.3.2.3 Tribunal Discretion
Specific aspects of discretionary power will be discussed on a topic-by-topic basis. Some
more general observations are made at this stage. As noted above, tribunals are given a
broad discretion as to admissibility, relevance, materiality and weight of evidence. A
corollary is that a review court should not readily interfere with the discretionary
determinations made but will only limit itself to claimed breaches of due process in
relation to that activity. The most challenging issue will be limits on evidence for
efficiency reasons. Some efficiency-based discretionary decisions will be non-
contentious. For example, tribunals could consider bifurcating evidentiary stages where
decisions on certain facts will significantly impact upon the type of evidence and extent
of evidence necessary at later stages. This is simply a logical corollary of the common
bifurcation between liability and quantum and does not diminish the right to be heard.
Where more contentious discretions are to be employed, a tribunal will naturally
consider due process, fairness, a sufficient opportunity of presenting a case, emerging
best practice and the reasonable expectations of the parties. The latter could, for
example, include considering the solutions in the national laws of evidence common to
both parties. (25) This could be justified on the basis of the reasonable expectations of
the parties based on their familiarity with adjudicatory processes.
As always, discretions must be exercised within the parameters of the rules granting the
discretion and subject to mandatory due process norms. Because party autonomy is
paramount and parties can have very differing views on evidentiary matters, it is
desirable to seek the input of the parties and wherever possible have agreement
between them to obviate the need for a discretionary determination. This is particularly
important as the kinds of measures a tribunal might employ to promote efficiency can
invite disappointed parties to consider challenges based on interference with their
ability to fully present the case. Such agreement can at the very least be an a priori
agreement to accept a tribunal's discretionary determination. While that is presumed in
any event under general rules, this could be made clearer in contentious areas. (26)
However, in some extreme cases, a tribunal may ignore an agreement of the parties if it
P 753 offends principles of justice and efficiency. (27) A tribunal should also warn the parties
of the ramifications of failing to meet evidentiary obligations. This will hopefully promote
greater compliance and also reduce the opportunity for challenge.
10.3.3 Good Faith and Evidence

Preamble 3 to the IBA Rules of Evidence 2010 indicates that:
the taking of evidence shall be conducted on the principle that each Party
shall act in good faith…
Rule 34(3) ICSID Arbitration Rules provides that ‘(t)he parties shall cooperate with the
Tribunal in the production of the evidence…’ Article 15.7 of the Swiss Rules 2012 provides
that ‘(a)ll participants in the proceedings shall act in good faith…’. Good faith can also be
said to arise as an implied element of the agreement to arbitrate. (28) Separate
obligations may apply to legal counsel. (29)
10.3.4 Public International Law and Evidence

Another source of guidance might be from the practices of other international
adjudicatory bodies and the rules and practices under public international law. The
approach to evidence and fact-finding in public international law may be directly
relevant in investment arbitration. Evidentiary norms in public international law are also
generally consent based and derive from statute and treaty. (30) It is also possible that
court behaviour over time can lead to the development of customary norms. Brower
suggested that a lex evidentia may thus develop. (31) In a detailed study some time ago,
P 754
5
P 754 Sandifer suggested that there has developed ‘what is tantamount to a customary law
of evidence’, (32) although he is also quoted below to the effect that ‘each tribunal tends
to be a law unto itself…’, (33) propositions that do not sit well together.
Even if public international law principles do not directly apply, cases from that arena
may provide useful guidance. (34) The influence is likely to be greatest where at least one
party is a State. General deference to a sovereign party will often see adjudicators being
reluctant to severely limit evidence provided. Public international law cases can also
give guidance as to the way to treat confidentiality claims by sovereigns and the
possibility of drawing adverse inferences in such circumstances.
10.3.5 Party Autonomy

Regardless of whether evidentiary issues are procedural or substantive, party autonomy
is paramount, save where mandatory norms are concerned. Autonomy is not unlimited
however. A tribunal is entitled to draw its own conclusions of fact notwithstanding any
contrary agreement by the parties. (35) Yet it is rare for parties to expressly agree on
evidentiary provisions in their arbitration agreements. Agreement is too often unlikely
once a dispute has arisen as some evidentiary issues will favour one party over another.
Parties can broadly agree on evidentiary principles or agree as to specifics, for example,
as to a documents-only adjudication. One option as noted below is to consider whether
to agree on the application of the IBA Rules of Evidence 2010.
Any agreement between the parties should be accepted unless it offends against
mandatory due process norms which cannot be waived. An agreement that increases the
tribunal's workload over that contemplated in the original contract of engagement would
also not bind the tribunal. A more challenging issue is where the parties want to agree to
something that the tribunal thinks is unsuitable, for example, a documents-only
adjudication when the key issue is what was said at a meeting where minutes were not
kept. These scenarios were considered more fully in section 9.2 An arbitrator must be
able to give contrary directions in some cases at least.
Another contentious aspect of party autonomy is when it is not clear whether there has
been an agreement. One example might be a dispute about a potentially pathological
arbitration clause where it is not clear which institutional or ad hoc rules have been
selected. This will simply be a matter for proper interpretation of the arbitration
P 755 agreement. If there is a disagreement about a separate alleged agreement on
procedural matters, typically by way of discussion between counsel after the dispute has
commenced, it would be difficult for a tribunal to make a determination. In most cases a
tribunal would feel bound to conclude that there is insufficient evidence of any
agreement, although in some cases, correspondence would allow for a contrary
conclusion.
A more contentious question is whether a preference for a particular evidentiary
approach can be justified under an implied consent analysis as to the way business
people could be expected to want discretions to be exercised. For example, does
implied consent point to a preference for the fully objective document production
approach over the libertarian perspective? Such an argument would be difficult to
maintain in all situations, although there are some modest arguments in favour of the
objective model. First, as much international business is between parties with ongoing
business relationships, one might expect that the business people involved would prefer
the correct outcome and would see any libertarian and gamesmanship perspectives as
unduly zero sum in nature. (36) Such an analytical perspective might seem to be
supported by some recent empirical data (37) which found that the correct outcome was
by far and away the most important objective of the business people canvassed, although
admittedly, there are some contradictory studies. (38) The argument would proceed that
most business people behind a veil of ignorance as to whether they will ultimately
succeed in the proceedings, would prefer truth to dominate. The presumption is that a
just resolution of business disputes is likely to be a win-win outcome in the context of a
long-term business relationship. This is particularly so as the original business deal was
intended to be win-win. Hence any variation from the original intention via alleged
breach should bring the parties back into the original position. That original intent itself
might be supported under an implied consent paradigm. A dispute settlement outcome
that allows the ‘wrong' party to win, is a disincentive to business transactions or adds
costs through parties pricing the risk factor into their future commercial dealings. The
logic would depend on the tribunal being able to keep the cost in proportion to the value
of the claim at the same time as pursuing the truth.
10.3.6 Harmonisation Initiatives

Some argue that without standardised rules, ad hoc international tribunals will too
readily fall back on their own experiences and preferences. One earlier study of the
evidentiary approaches of international tribunals considered that ‘(e)ach tribunal tends
P 756 to be a law unto itself, the rules adopted and applied for the occasion being to a
considerable degree determined by the legal background of the members of the
tribunal.’ (39) Others suggest that there is already convergence of practices. Fouchard
considered that international arbitrations tend to follow an increasingly uniform pattern,
with the written stage largely based on continental procedure and with the oral stage
6
influenced to a greater extent by common law techniques. (40) Dezalay and Garth take a
different view, arguing that Anglo-American lawyers have shaped arbitration proceedings
in the context of their legal cultures. (41) Others argue that there is an undesirable
obsession with creating complex rules that can never be drafted with appropriate
precision. The suggestion is that the real need is to employ expert, practical and ethical
arbitrators whose selection and approach will be tailored to the needs of the dispute and
the parties and not look to rules for the promotion of optimal practice.
The very fact that there is an ongoing debate suggests that procedural and evidentiary
behaviour is not uniformly ideal and that further analysis should occur. Issues such as this
will typically be debated by practitioners from differing legal families in symposia, (42)
which may then lead to a more harmonised perspective. Multi-person tribunals will often
bring together arbitrators from different legal families, requiring a compromise approach
in any event. The approach taken by other tribunals such as the Iran–US Claims Tribunal
is also typically influential. (43) The view of this author is that too often the debate
between those favouring rules and those favouring discretion gives insufficient attention
to the best way to respond to our natural wish for potentially conflicting virtues, in this
case certainty versus flexibility. Each has advantages and disadvantages standing alone.
An ideal compromise will be some form of guided flexibility. This would entail enough
flexibility to allow for the nuances of each case to be dealt with fairly and efficiently, but
with enough guidance to promote predictability and consistency of tribunal behaviour
and provide an educative function for less experienced stakeholders. (44)
While the conceptual debate is still important, it is also necessary to consider the utility
of current harmonisation or standardisation initiatives. In addition to directions in lex
P 757 arbitri and arbitral rules, a number of institutions have attempted to provide
evidentiary models or guides. If agreed to by the parties, they will be binding unless they
offend mandatory norms. Even if not agreed to, they may be highly influential as to the
way arbitrators exercise discretions if it is felt that they encapsulate best practice or
converging practice. Once again, the details in such instruments will be considered in
specific sections below.
10.3.6.1 The IBA Rules of Evidence 2010
The IBA Rules on the Taking of Evidence in International Arbitration (the ‘IBA Rules of
Evidence 2010’) (45) adopted on 29 May 2010 and the predecessor 1999 Rules have
become particularly influential. (46) Because the IBA is a private body that does not
conduct institutional arbitration, the rules cannot have direct binding force without any
agreement to that effect by the parties, although they might also be an informal guide to
the exercise of broad discretions. If the parties agree on the application of the IBA Rules,
either in their arbitration agreement or up to and including the time of the hearing, then
a tribunal would be bound to follow this. Agreement could be direct or indirect. As an
example of the latter, the ACICA Rules expressly provide that the arbitral tribunal shall
have regard to but not be bound by the IBA Rules of Evidence 2010 in their current
version as at the commencement of the arbitration. (47) The ICC publication Techniques
for Controlling Time and Cost in Arbitration also recommends consideration of the IBA
Rules of Evidence. (48)
Where the parties agree to the IBA Rules the rules themselves state that they are deemed
to have agreed to the version current on the date of such agreement, absent a contrary
intention. (49) The parties may prefer to expressly indicate that they are agreeing to the
rules in force at the commencement of the arbitration in order to use the most up-to-
date version. (50) If the parties proscribe their use, the tribunal should respect that
choice, although a broad discretion over evidence might lead to similar solutions on a
topic-by-topic basis unless these solutions are also expressly or impliedly proscribed by
the parties. The IBA Rules will also not apply if they conflict with mandatory rules or
specific processes expressly selected by the parties. A more difficult question is what use
can be made of the IBA Rules where one party alone objects to their use. Here they can
still be a guide to discretionary determinations but do not apply as of right.
P 758
If they apply, they will still be subject to mandatory norms that will shape the exercise of
discretions. They may also be impacted upon by the rules of any jurisdiction where court
assistance is sought and codes of ethics arguably applicable to counsel. In some cases,
national codes of ethics might expressly exclude arbitration. In others they might
expressly apply. In many cases they are silent, leaving it open to debate as to their
intent. If the Rules apply by agreement but there is a conflict between them and arbitral
rules chosen by the parties, it is not clear which should prevail, as the parties have
selected conflicting broad ranging provisions. Typically this conflict will be unintentional.
If the parties cannot clarify the inconsistency, the tribunal will need to make a
determination. Because the Rules of Evidence are more specific, one might conclude that
selection by the parties evidences that they should prevail. Ideally, the parties should
seek to resolve this by agreement. The Commentary of the IBA Rules of Evidence Review
Sub-Committee suggests that absent an agreement ‘the arbitral tribunal shall try to
harmonise the two sets of rules to the greatest extent possible.’ (51)
While the Rules are an important option, they leave many questions open as the Rules do
not seek to resolve many of the more contentious evidentiary issues about which legal
7
families have differed, although some key preferences are evident. Even where they are
utilised, they will commonly refer to conflicts principles such as ‘applicable’ laws of
privilege. Hence they contain some contentious and uncertain elements which are also
the subject of debate. The Rules also rely heavily on some broad concepts rather than
detailed prescriptions. The overall flavour of the Rules is to promote openness,
collaboration, fair treatment and efficiency. Article 2.3 now indicates that the tribunal ‘is
encouraged’ to identify issues for the parties ‘as soon as it considers it to be
appropriate…’. While couched in diplomatic language, including this in an Article rather
than in the Preamble as was the case with the 1999 Rules suggests a wish to further
promote such behaviour. The Rules now expressly refer to the tribunal's duty to consult
with the parties so as to provide efficient, economical and fair processes for the taking of
evidence. (52) Consultation obligations are mandatory and should occur at ‘the earliest
appropriate time …’. (53) A greater concern for efficiency is also supported by Article
2.2(e) which includes for possible consideration, ‘the promotion of efficiency, economy
and conservation of resources in connection with the taking of evidence.’ Paragraph 3 of
the Preamble makes clear that the Rules are not intended to limit tribunal flexibility. The
Preamble also notes that the paramount principle is that each party shall be ‘entitled to
know, reasonably in advance of any Evidentiary Hearing or any fact or merits
P 759 determination, the evidence on which the other Parties rely.’ The Rules also expressly
provide that costs discretions may apply if a party has failed to conduct itself in good
faith in the taking of evidence. (54)
Lew, Mistelis and Kröll suggest that if parties wish to adopt the IBA Rules or similar, they
should provide for this in their arbitration agreement. (55) Bühler and Dorgan argue
against adoption of the IBA Rules in pre-dispute arbitration agreements as this might
remove flexibility and discretion, (56) although that comment was made prior to
evaluation of the 2010 Rules. A contrary argument is that there is sufficient flexibility and
discretion within the current Rules, so prior agreement would only be inappropriate if the
Rules unduly favoured one side, which should not be the case.
To some, the development of these rules by a task force comprising leading practitioners
from differing legal families is a clear example of emerging best practice. (57) To others it
reflects the approaches taken by skilled arbitrators. (58) It has also been suggested that
the vast majority of arbitrators will include the rules in terms of reference or in
subsequent directions. (59) Others are more critical. One commentator has suggested
that ‘the IBA Rules constitute a misguided combination of various aspects of different
traditions.’ (60) At the extreme, some would see these rules as an example of common
law domination over long-standing principles of civilian evidence law in relation to
matters such as document production generally, the specific case of internal documents,
P 760 the case of cross-examination and the entitlement of parties as witnesses. Conversely,
it has been observed that the majority of members of the working party for the 1999 IBA
Rule revision were non-common lawyers. (61) It is true to say that the express reference to
a range of evidentiary matters makes greater inroads into the traditional civilian
approach. Where common law principles are concerned, the rules simply remove the
strict application of inadmissibility criteria, although many of these are again articulated
as grounds upon which document production can be refused. The point to be taken from
sections 1.8 and 10.2 above is that simple concern for the more questionable aspects of
each legal family or concern for which historical tradition comes to dominate is less
important than concern for finding compromises that lead to fairness and efficiency in
the context of the aspirations of the users of international arbitration.
Even where no agreement is present, a significant number of tribunals will utilise the
rules simply because of their status. Over time, broad use will constitute a consistent
body of arbitral practice that can only be self-supportive. Counsel in arbitrations will
also naturally look to the IBA Rules as part of their evidentiary submissions, so they may
influence the matters raised before a tribunal even before the arbitrator would naturally
consider the question. Because the Rules contain so many discretionary elements, it will
always remain the case that arbitrators even bound by the rules can take differing views
about the trade-offs between truth, liberty and efficiency on a case-by-case basis.
10.3.6.2 UNCITRAL Notes on Organising Arbitral Proceedings
These Notes were finalised by UNCITRAL at its 29th session in 1996. The Notes aim to
assist arbitration practitioners by listing and outlining questions on which decisions may
be useful. They are non-binding and the tribunal remains free to use the Notes as it sees
fit. In particular, they are not appropriate to be used as arbitral rules. (62) There are also
the UNCITRAL Draft Guidelines for Preparatory Conferences in Arbitral Proceedings. (63)
10.3.6.3 Chartered Institute of Arbitrators Protocol for the Use of Party-Appointed Expert
Witnesses in International Arbitration
The Protocol was developed in 2007 and aims to be a comprehensive outline of the issues
P 761 to be dealt with for party-appointed experts. It is not intended to cover tribunal-
appointed experts or single joint experts. It is available to be used in whole or in part.
10.3.6.4 ICC Techniques for Controlling Time and Cost in Arbitration
The ICC Commission on Arbitration has produced a report outlining recommended
8
techniques for controlling time and cost in arbitration. (64) The report is designed to
assist tribunals and counsel. It also allows for possible agreement by the parties. The
techniques are not intended to be prescriptive or regarded as a code of best practice,
but again are ideas to assist in arriving at efficient procedures. However, key elements
have now been incorporated into Appendix IV of the ICC Rules 2012 and are hence
applicable in ICC arbitration.
10.3.6.5 CPR/ICPR
Other models include those promulgated by CPR and ICPR. These include the ICDR
Guidelines for Arbitrators Concerning Exchanges of Information and the CPR Protocol on
Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration. (65)
10.3.6.6 ALI/UNIDROIT Principles and Rules of Transnational Civil Procedure
There have also been transnational civil procedure initiatives not directly applicable to
arbitration that can provide guidance. The ALI/UNIDROIT principles were prepared by a
joint American Law Institute and UNIDROIT study group and were adopted by the
Governing Council of UNIDROIT in 2004. (66)
10.3.6.7 Further Initiatives
One problem if there are too many specific rules available and variances between them,
is that debate may ensue as to whether inferences of party intent can be drawn by a
consideration of the differences between rules selected and other options. This would not
be desirable. A simple approach to harmonisation aimed at avoiding this problem is to
try and use similar language in different instruments. For example, the Chartered
P 762 Institute of Arbitrators Protocol for the Use of Party Appointed Expert Witnesses in
International Arbitration tried to follow the language in the IBA Rules of Evidence 2010
wherever possible. (67)
10.4 Legal Approaches to Fact-Finding

The following sections look separately at questions of the burden and standard of proof.
These are key aspects of the methodology by which legal systems resolve disputes on
factual questions. These principles also need to be considered in conjunction with other
evidentiary policy choices, including the independent fact-finding powers of the tribunal
and the duties on the parties as to document presentation and document production.
(68) Problems of proof are compounded when the tribunal has a discretion as to what
kind and amount of evidence to admit. A tribunal that restricts a party's right to tender
particular evidence and then concludes that it has not met its burden of proof, may be
rightly or wrongly accused of failing to afford the party an opportunity of reasonably
presenting its case. In addition, because the parties cannot know at the outset how
proactive an arbitrator will be and what balance he or she will seek to achieve between
truth and efficiency, they cannot know at the outset what evidentiary material they are
likely to need to succeed. This suggests that any tribunal should give as much guidance as
it can at the earliest stage as to the way it intends to approach evidentiary issues.
10.4.1 Burden of Proof

There is commonality between legal families and within public international law as to
the application of the burden of proof in any case. It is widely accepted that a party
seeking to rely on a particular fact has the burden of establishing it. (69) More broadly, a
party requiring some determination from a tribunal has the burden of establishing its
entitlement, although Jarvin suggests that ‘(t)he strict distribution of the burden of proof
applied by national courts does not apply in international arbitration.’ (70) Burden of
proof relates to factual matters and not questions of legal interpretation, although the
P 763 party with the burden must be able to identify a legal basis for the claim. (71)
Nevertheless, if a tribunal is asked to interpret a particular law, it will seek to do so as
best it can and will form a reasoned view without simply relying on questions of burden.
The burden of proof never shifts, (72) although the more evidence that the party with the
burden has in its favour, the more the opposing party must seek to counter it. (73) This is
discussed further below in relation to onus of proof. (74)
The commonly accepted view as to burden of proof is enshrined in various Roman law
maxims, namely, ei qui affirmat non ei qui negat incumbit probatio (the onus of proof is on
the person who affirms and not on the one who denies); actori incumbit probatio (the
burden of proof is carried by claimant); actore non probante reus absolvitur (if the
plaintiff cannot prove the case the defendant is absolved); and reus excipiendo fit actor
(the defendant, by raising an exception or pleading, becomes a plaintiff). The references
P 764 to claimant/plaintiff and respondent/defendant can be misleading as it is clear that
the burden is on the party seeking to prove some fact. Thus claimants must prove claims,
but defendants then must prove defences and counterclaims or set-off rights.
Provisions in arbitral rules describing burden of proof are not intended to override any
provisions in the applicable substantive law. Provisions in arbitral rules simply restate
the general proposition but do not seek to vary specific rules on matters such as
mitigation, foreseeability and force majeure where substantive rules will often indicate
9
which element must be proven by which party. The burden and standard of proof can also
be impacted upon by the way substantive rights are constructed. Sometimes the contract
terms will significantly alter what would otherwise need to be proven. For example, a
contract might give a buyer the complete right to reject goods for lack of quality without
being subject to challenge. A multinational supermarket chain may be able to negotiate
such an entitlement with suppliers. Here the buyer would simply need to establish the
fact of rejection and not a legal basis for doing so. At most, a tribunal might interpret that
provision as being subject to a duty of good faith. At other times the applicable law will
have a similar impact.
Arbitral rules rarely articulate the principles of burden and standard of proof. It is
considered part of a tribunal's inherent jurisdiction to consider such matters. Some
arbitral rules do make express reference to burden of proof. For example, Article 27.1 of
the UNCITRAL Rules 2010 state:
Each party shall have the burden of proving the facts relied on to support his
claim or defence …. (75)
The issue was not dealt with in the UNCITRAL Model Law, in part because of differences in
view between legal families as to whether burden of proof is procedural or substantive.
Civilian legal systems tended to consider it to be a substantive issue that would hence be
determined under Article 28. (76) While not directly applicable to arbitration, the Rome
Convention of 1980 on the Law Applicable to Contractual Obligations stipulates that
burden of proof is governed by the lex causae (77) Andreas Reiner argues strongly that
burden and standard should be seen as substantive. (78) According to Reiner, the most
important reason why burden and standards of proof should be seen as substantive is
P 765 that they directly affect the claim itself. Reiner also argues that if the law applicable
to the substance of the dispute is also applied to burden and standards of proof, it
provides greater fore-seeability for the parties. Finally, Reiner suggests that when parties
decide on procedural rules they do not have the intention to thereby determine the rules
concerning the burden and the standard(s) of proof.
It might also be argued that to separate burden of proof from substantive legal rules
could distort the latter as they are inextricably linked. (79) For these reasons, Born
suggests that burden of proof might present choice of law questions. He concludes that
‘the tribunal should allocate the burden of proof in the light of its assessment of the
applicable substantive law and procedures adopted in the arbitration. In so doing, the
tribunal need not apply the burden of proof rules of any specific jurisdiction, but can
instead fashion specialised rules in light of the particular substantive issues and
procedures at issue in a specific instance.’ (80) Such an approach would only be
necessary if there truly are differences in approach between legal families and
adjudicatory bodies. The better view is to see burden of proof as always being on a party
seeking to establish a position, but note that the substantive law will commonly impact
upon this by indicating what must be proven and by whom.
As noted at the outset, the more contentious variations in approach are likely to arise
because burden of proof is interrelated with document production entitlements, (81) and
the inferences that might properly be drawn from a failure to produce. A tribunal still
needs to decide how to behave if it is hard for the party with the burden of proof to bring
evidence, or if all key evidence is in the hands of the respondent. This is discussed further
below in section 10.4.15 dealing with integrating various legal approaches to fact finding
and in sections 11.4 and 11.5 dealing with obligations to produce adverse evidence.
Finally, burden and standard of proof should not necessarily vary simply because a
tribunal has been appointed as amiable compositeur, although there are differing views
as to the proper methodology of such an adjudicator. This is discussed further in section
13.14.
10.4.2 Burden as to Defences, Exceptions, Counterclaims and Set-Off

A respondent will have the burden of establishing the validity of any defences on which it
relies. The respondent also has the burden in relation to counterclaims and set-off rights.
Claimant would have the burden as to defences to such alleged rights. In some cases it
P 766 will be necessary to consider whether an issue is truly a defence or whether the issue
in dispute is an exception to a primary obligation. In the latter event, the burden may
remain on the claimant to show that there is indeed an obligation notwithstanding the
exception.
Burden of proof may also be problematic or at least unhelpful in cases where there are
claims and counterclaims about the same factual issue. For example, in a construction
dispute, a builder might render an account to the owner who then refuses payment. The
owner might seek a declaration from an arbitral tribunal that the money is not owed,
while the builder would naturally counterclaim as to an entitlement. From a technical
perspective, each has a burden of proof as to its contention. Obviously, in such
circumstances the tribunal will consider all the evidence and simply decide which view is
to be preferred.
10.4.3 Standard of Proof
10
It was stated above that the burden of proof remains on the party seeking to establish a
particular proposition. Burden of proof simply deals with responsibility, but does not
indicate the level of proof that is required. Standard of proof deals with the degree of
conviction that the adjudicator must have to be satisfied that the burden has been met.
As noted above, common law legal systems treat it as procedural, while civilian systems
see it as substantive. Common law systems speak of the balance of probabilities, that is,
that a proposition is more likely than not. Civilian legal systems speak of the satisfaction
of, or the inner conviction of the adjudicator. (82) There is unlikely to be any difference
between the civil and common law standards as expressed, notwithstanding some
comments to the contrary. (83) Reiner has suggested that continental law establishes a
higher standard than common law, noting the use in Austrian law of the term ‘full
conviction’ (voile Überzeugeng) although he concludes that the practical result seems the
same in both systems. (84) He concludes that the real test in each system ‘must be a test
of preponderance of evidence’. (85) Von Mehren and Saloman also speak of a higher
civilian burden but again argue that the ultimate test is a preponderance of evidence.
(86)
P 767
Arbitral statutes and rules rarely articulate the principles of standard of proof in any
detail. The Eritrea–Ethiopia Claims Commission noted that international adjudicatory
rules do not typically ‘articulate the quantum or degree of proof that a party must
present to meet this burden of proof.’ (87) Standard of proof is seen as being more
problematic as it not only may have issues of characterisation in terms of procedural
versus substantive law but might ‘also reflect subjective standards (“inner conviction”) of
arbitrators.’ (88) It may be that different legal families are speaking at cross purposes or
are describing only part of a broader picture. To speak of the inner conviction of an
adjudicator as opposed to the balance of probabilities makes for a difficult comparison
as each formulation is incomplete. How is the balance of probabilities to be determined
other than by the inner conviction of the adjudicator as to the probability of each view?
To a civilian adjudicator, what is their inner conviction to be about if not that one side's
evidence is more believable or is preponderant to that of the other? Thus it is overly
simplistic to speak as some do of the civilian burden as subjective, as if there is no
subjective element in common law adjudication. Another reason why there is unlikely to
be any significant difference between the articulations in different legal families, is that
no system allows a party to succeed if their opponent's contentions are preferred. In any
contest, one side's contentions will outweigh the other. If they are equal, all systems
would conclude that the party with the burden has failed, as it has failed to prove that its
contentions are properly preferred. Caron et al. suggest that the balance of probability
standard reflects arbitral practice. (89) The only remaining doubt is whether some
civilian systems in practice require a higher level of conviction than mere on balance
preponderance.
It is more important to consider the way that adjudicators make these determinations
and not simply consider the general phraseology used to describe standard of proof. In a
detailed study of public international law adjudication, Kazazi argues that ‘standard of
proof is a subjective and discretionary matter subject to human judgement’, because of
the need to analyse and resolve the way to treat conflicting evidence. (90) Because of the
uncertainty of conflicting evidence, probabilistic analysis is commonly involved. (91) The
evidence of one party is not necessarily tested merely against that of the other. One
formulation accepted by an international arbitral tribunal was as follows: ‘Does the
evidence tested against human experience and common sense persuade or does it not?’
P 768 (92) A practical scenario where differing articulations may matter is whether
claimant's case simply needs to be more believable than respondent's or whether
claimant's case must be likely to be true in an absolute sense. It is entirely possible that
each party's contentions are unlikely, but one is still more likely than the other. Another
scenario is where proof of a causal link needs to be higher than on balance under civilian
conviction standards.
An expert arbitrator might also consider standards in the context of experience as
opposed to relying solely on the conflicting evidentiary material. For example, a
construction engineer might be swayed, albeit subconsciously, by what experience
suggests is the key cause of problems of this type on construction sites. Where the
allegation is of professional negligence and there is a need to consider the appropriate
standard of care, it would be hard for an expert arbitrator to ignore what they think they
would have done in the circumstances. It is also important to consider standard of proof
both in terms of the primary obligation on the party with the burden of proof, and
secondly, in terms of the ultimate conclusion of the tribunal after each party has
presented its evidence. Individual items of evidence cannot be weighed in a vacuum. It is
a relative exercise to consider the relevance, materiality and probity of conflicting
evidence. A claimant with the burden of proof may present a prima facie case that
satisfies the standard of proof required at that stage, only to find that the respondent
subsequently presents a preponderant body of evidence leading to a decision in favour
of respondent. The notion of a prima facie case is discussed in the following section. Onus
of proof is discussed in section 10.4.7.
An adjudicator's approach to questions of standard of proof may also vary depending on
11
the issues and legal norms involved, although the concept itself does not change. For
example, where jurisdiction is concerned, some arbitrators would look for strong
evidence to ensure that consent is properly found to exist. Others might take a contrary
approach, looking to find validity wherever it is reasonable to do so, on the basis that
even potentially pathological references to arbitration should be supported on an intent
analysis. They may even have one eye on the standard of proof likely to be applied by an
annulment court or an enforcement court where the place of enforcement can be
anticipated. This could be justified although not mandated under the duty to render an
enforceable award.
Approaches to standard of proof may also vary if the issue is a complex economic or
scientific question, a complex question of causation or a serious allegation of
impropriety such as lack of good faith or fraud. In all of these situations, the legal
articulation of the standard of proof remains constant but the body of evidence that
might be required can vary. Proving that a drug is safe as contractually warranted may
require clinical trials that must come close to certainty. Where an allegation of fraud is
concerned, a significant body of evidence might be required to justify a conclusion that
fraud is present and that the person under consideration cannot have their behaviour
P 769 readily explained on other bases. This can also impact on the evidence that might be
needed. Documents evidencing fraud may need to be more compelling. Some seek to
articulate a higher standard in such circumstances. (93) The Iran-US Claims Tribunal even
went so far as to say that in the context of an allegation of bribery, ‘if reasonable doubts
remain, such an allegation cannot be deemed to be established.’ (94) In the context of an
allegation of forgery, another Tribunal considered that this ‘must be proved with a higher
degree of probability than other allegations.’ (95) Conversely, one leading arbitrator has
suggested that the burden of proof may need to shift when there are allegations of
bribery simply because of the difficulty of proving the proposition to the requisite
degree. (96) In ICC Award No 8891 (97) a tribunal considered that the burden of proof
remains on the party alleging bribery but that in some special circumstances if relevant
evidence of the allegations is brought, a tribunal might call for counter-evidence from
the other party in the absence of which adverse inferences might be drawn. Other
references to lower or higher standards of proof rather than a consideration of a
consistent standard in the context of available evidence have been suggested by Caron
et al (98) (the standard of proof… varies according to the circumstances), and Born (99)
((i)n limited instances, a lower or higher standard of proof arguably applies). The
preferred view should be to apply uniform standards in the context of the available
evidence and the seriousness of the allegations and not attempt to set up multiple
standards of proof depending on the circumstances. Because allegations of bad faith and
illegality require sufficient proof of a particular mental state, uniform standards
rigorously applied will protect against unmeritorious claims.
Serious allegations can also impact upon questions of timing and the need for the person
P 770 claiming such breaches to provide adequate particulars and evidence at the earliest
possible opportunity. This is not only because of the seriousness of such allegations but
because of the difficulty of disproving them.
Conversely, if a party simply needs to prove a share price on a particular day, a
commercial newspaper is likely to suffice unless contradicted. In some cases a lesser
evidentiary requirement may be appropriate in the context of likely best evidence. For
example, the Claims Resolution Tribunal for Dormant Accounts in Switzerland utilised a
‘relaxed standard of proof’, also described as a ‘plausible’ standard when dealing with
claims by victims of Nazi persecution or their heirs as to their claims over dormant Swiss
bank accounts many years after World War II. (100) That standard was less contentious to
apply in that context given that it was not typically a matter of contested facts, but
rather, deciding on adequate proof for the banks purposes. While the solution seems
eminently fair, it may again be preferable in such circumstances for a tribunal to simply
indicate that applying broad standards of proof must be looked at in the context of the
documentary evidence that could reasonably be expected to be presented by a party
with a valid claim, rather than utilising phrases such as ‘relaxed’, that might wrongly
suggest that the claimant has been given a preferred position.
Some speak of a lower standard of proof where damages are concerned. (101) Others
instead criticise an alleged lax application of standards of proof by some arbitrators
where damages are concerned. (102) The issue is once again less about the standard of
proof and more about the evidence the tribunal will require as compared to the best
evidence available, and the time and effort it will wish to apply to calculations. When a
tribunal picks a ‘ballpark’ or rounded figure and does so in good faith, it is providing its
most likely estimate of the damages, albeit on an evidentiary methodology that leaves it
open to justifiable criticism. Conversely, if it splits a figure to try and be fair and gives
something to save face to the losing party, absent express entitlement to do so as
amiable compositeur, a tribunal has simply not complied with its mandate. (103) In many
cases the fault partly lies with counsel if they put more effort into preparing the liability
stage than they do for the quantum stage.
The degree of exactitude that a particular substantive law expects in proof of damages
P 771 may also impact upon the way in which standards are satisfied. (104) Even though
some legal systems do not see standard as a matter of substantive law, all would accept
12
that substantive norms can impact upon the degree of proof required. For example, a
tortious claim based on common law may have the principle of res ipsa loquitur
applicable, that is, that the thing speaks for itself in terms of negligence. (105) Another
way to put this is to note that the substantive law and contractual terms determine what
must be proven. For example, in ICC Case No 6653, the parties' contract indicated that if
there is a dispute about conformity of the goods, the purchaser would appoint an expert
whose decision would be binding on the parties. The tribunal accepted this stipulation
and did not revisit the issue of conformity. (106)
Legal systems that consider standard of proof in terms of preponderance of evidence or
other similar probabilistic notions, often have to deal with situations where a party
needs to prove a number of uncertain and related matters to succeed. For example, if a
claimant alleges that a pre-contractual representation caused it to acquire a business
which failed because the representation was untrue, there are a number of steps in the
logic. Was any representation made? Whose version of the comments was most accurate?
Was the language clear enough to constitute a representation? Did the claimant rely on
it? Was the reliance reasonable? Was the representation untrue? Was it the cause of the
business failing? What was the amount of damage? Thus the party with the burden may
need to satisfy every required element of the claim by such a preponderance of
evidence. In these circumstances a tribunal makes an overall assessment as to standard
of proof and does not seek to technically apply the standard to each step, although if the
claimant fails on any of the steps, it ought to fail overall.
10.4.4 Prima Facie Evidence

In common law legal systems there is the related principle that the party with the burden
of proof needs to at least establish a prima facie case, otherwise the responding party
can make an application that there is no case to answer before being called on to
present any of its own evidence. A prima facie case is one where the party who has
presented it should succeed in the absence of refutation. The process of no case to
answer submissions is unlikely to apply in international arbitration in a formal manner.
Kazazi suggested that ‘international proceedings…. do (not) consist of two stages, with the
court's decision to proceed to the second phase depending on whether or not enough
evidence has been produced in the first phase…. The practice of international tribunals
in this regard follows the pattern of civil law countries…. in which it is only at the end
P 772
of the proceeding that the court decides whether or not the burden of proof has been
discharged.’ (107)
Nevertheless, the concept of a prima facie case may still impact upon the practicalities
of fact-finding. If the claimant cannot present even a prima facie case, the respondent
will ultimately succeed. Where a claimant has established a prima facie case through its
initial submissions, the responding party must present a more compelling case or it will
lose. While the burden of proof never shifts, the burden of proceeding or onus of proof can
be said to shift back and forth depending upon whose case is relatively stronger at any
stage of the proceedings. (108) This is discussed further in section 10.4.7 below.
10.4.5 Proving a Negative

At times a party with the burden of proof must seek to prove that something did not
happen or some circumstance does not exist. While the legal principles of burden and
standard of proof are the same, it needs to be understood that it is always more
problematic to seek to prove a negative. An arbitrator must be alert to this to deal fairly
with both parties.
10.4.6 Standard of Proof Where Administrative Actions are Challenged

Investment disputes will often be concerned with the adequacy or otherwise of domestic
administrative practices. An example would be an expropriation or national treatment
claim based on the failure to renew a mining licence on the grounds of alleged
environmental breaches. Considerations of burden and standard of proof within
arbitration are complicated where the issue of concern is the domestic bureaucratic
decision which itself was subject to burden and standard principles and domestic
administrative review rights. In some cases there might be arguments as to whether the
bureaucrat correctly applied burden and standard principles and whether sufficient
evidence was sought and relied on for such purposes. In an ordinary commercial dispute,
conflicting evidence is simply weighed up to determine which view is preponderant. In
some investment arbitration cases, it may be arguable that the key question is instead
whether the bureaucrat behaved reasonably, taking all relevant facts into account and
ignoring irrelevant criteria.
P 773
Another issue arising where the challenge is to domestic administrative behaviour, is
whether there should be deference as is applied in some administrative law systems in
the context of standard of review. This issue might arise in the investment arbitration
example above. EU courts typically adopt a margin of appreciation analysis in reviewing
administrative action. (109) Applying such a margin of appreciation might also mean that
a tribunal is less inclined to be concerned with expert evidence, at least insofar as it
13
seeks to identify the best outcome under a de novo reconsideration of the decision in
issue. The better view is that the tribunal can still avail itself of this form of evidence
even when it wishes to apply a margin of appreciation. The expert evidence could show
that the administrator's decision was certainly one of a range of reasonable options.
10.4.7 Burden of Proceeding and Onus of Proof

As argued above, the better view is to say that burden never shifts but whether the
standard of proof has been satisfied will depend on the material presented by both
parties. Because evidence is presented at different times, it is likely that the balance of
evidence may change back and forth. The concept of onus of proof refers to the party who
at any point in time is faced with a preponderance of evidence against it or is the one
otherwise needing to convince an as yet unconvinced adjudicator. Some also describe
this as the burden of proceeding but this is confusing as burden of proof never shifts, so
use of the term ‘burden’ in the phrase is apt to mislead. In a practical sense, it is
immaterial whether the party with such onus has the burden of proof or not. At that point
in time, its opponent has better evidence. If it does not respond adequately, it should
lose. Hence it is appropriate to refer to that party as having an onus at that stage. If it
responds adequately so that its evidence is stronger, the onus shifts in a practical sense.
The opponent must respond adequately or should expect to lose. (110) Of course, a
tribunal is not making a running assessment, nor advising the parties in most cases as to
the relative position. It is more a matter for self assessment by counsel. In some cases a
tribunal might give guidance by indicating that one party need not provide more
evidence on a particular issue or by warning them that they need to do so, although that
itself is contentious in terms of how proactive a tribunal should be. To do so, a tribunal
has to be absolutely certain that it has reached a positive decision and will not later
change its mind when drafting the award. This would be problematic with multi-person
tribunals.
P 774
10.4.8 Inferences and Presumptions

10.4.8.1 Positive Inferences and Presumptions
An important aspect of legal fact-finding is the use of inferences and presumptions, both
positive and negative. An example of a positive inference would be that
contemporaneous documentation is more likely to be reliable than documents prepared
for the purposes of the arbitration. Efficiency requires many presumptions in
adjudicatory processes, absent assertions to the contrary. For example, a claimant does
not need to prove that a request for arbitration was served. It is for respondent to
challenge adequate notice. The same will be so for all commercial communications that
underlie the substantive dispute. Adjudicators will also presume that documents are
authentic unless an allegation is made to the contrary. Holtzmann suggests that a
tribunal might direct that unless challenged within a stipulated period of time,
documents will be deemed to be authentic. (111) A tribunal is always entitled to draw
reasonable inferences. (112) An inference ought to be as to an actual likely fact and not to
a general statistical likelihood.
While any inference and presumption cannot be accepted with certainty, under a
standard of proof simply looking for something akin to preponderant conviction, these
must be legitimate methodologies of inference. Nevertheless, an adjudicator must
understand that these are merely presumptions. Hence an opposing party can attempt to
rebut the presumption. In many cases, the inferences flow from the behaviour of the
parties in terms of the optimal evidence that was available. The more a party can be
excused for not providing direct and cogent evidence, the more an adjudicator may be
willing to operate by way of positive inference. For example, in the Corfu Channel case,
the ICJ concluded that a party suffering a breach of international law which through lack
of power is unable to furnish direct proof of the facts giving rise to legal responsibility
‘should be allowed a more liberal recourse to inferences of fact and circumstantial
evidence.’ (113) Conversely, adverse inferences may be drawn when a party fails without
reasonable excuse to present evidence that is reasonably seen as being within its
possession or control. This is discussed in the next section.
The Iran-United States Claims Tribunal applied a number of presumptions on a routine
basis. These included: the failure to object in writing to a writing received at or shortly
after receipt is strong evidence of acceptance; statements by a party contradicting a
position taken in the proceedings is strong evidence against the position; and the failure
P 775 to produce evidence expected to exist and in the control of a party, allows for a
justifiable inference that the evidence would be adverse to that party. (114)
10.4.8.2 Adverse Inferences
It is readily accepted that tribunals may draw adverse inferences from a party's failure to
provide information and documents where it would be reasonable for them to do so.
Adverse inferences can apply to witnesses who could easily be called or who refuse to
answer certain questions as well as to documents not produced. Absent a valid excuse, it
is logical to presume that withheld information is adverse to the interests of the party
14
controlling it. (115) An appropriately drawn adverse inference is not a violation of a
party's right to be heard. (116)
An adverse inference is not a punitive action. It is an inference that can be reasonably
and logically drawn in appropriate circumstances. (117) This is a crucial distinction as a
punitive measure is simply a response to the clear fact of non-production. An adverse
inference requires a decision-making process as to the unreasonableness of non-
production and a logical inference that non-production justifies a view as to the kind of
information the document would thus be likely to contain or that the non-appearing
witness would have presented. It then involves consideration of the way that material is
to be balanced from an evidentiary point of view with other evidence that is actually
before the tribunal, (which could in turn include other inferences). Less clear is whether
the adverse inference should go so far as to treat all of the party's evidence as suspect
P 776 unless corroborated. (118) At the very least, if the tribunal draws an adverse inference
about a document itself, the assumption thereby drawn can be considered on balance to
outweigh contrary views and evidence on the same issue.
While the entitlement of an adjudicatory body to draw adverse inferences is readily
accepted, the issue is more complex when integrated with other principles such as
burden of proof and duties, if any, to produce relevant information. One issue that may
arise is whether an adverse inference can be the predominant basis upon which a
claimant satisfies its burden. Kazazi suggests that this should not be the case in terms of
a claimant's obligation to at least present a prima facie case calling for refutation. (119)
Sharpe recommends that before such a conclusion could be reached, the party inviting
the tribunal to draw adverse inferences must produce all reasonably available evidence
confirming it, demonstrate that the requested evidence is reasonably accessible to the
party against whom production is sought, demonstrate that the inference is reasonable
both in terms of its consistency with other facts and the presumption from non-
production, the requesting party must produce prima facie evidence, and the person
against whom the inference is sought must understand its obligation to produce evidence
in rebuttal of the inference sought. It is not clear what prima facie evidence would mean
in such circumstances and why prima facie evidence and all available corroborating
evidence are gateway requirements. Where corroborating evidence is concerned, its
absence may lead to a countervailing adverse inference and hence prevent an adverse
conclusion against the party which is the subject of a production request. That may be so
on appropriate facts but it should not be articulated as a gateway requirement. In any
event, it makes little sense from a policy perspective to limit the entitlement to draw
adverse inferences to situations where a claimant has made out a prima facie case. This
is because in such circumstances, the respondent needs to refute the case in any event to
be successful. In theory, there should be nothing to prevent adverse inferences founding
a claim but a tribunal would have to be particularly vigilant in ensuring that the
inferences were valid and appropriate. Having said that, the issue is complicated by the
fact that there are tenable arguments from the civilian legal tradition to the effect that a
party should never have to produce evidence against interest and that it is for a claimant
to have sufficient evidence to support a case before bringing it. Nevertheless, this is not
the dominant norm in modern arbitral practice. This is discussed further in sections 11.4–
11.6. It is also important for a tribunal to remember that its discretionary behaviour can
impact significantly on these questions. The situation is likely to be quite different if, on
the one hand, the tribunal sits back and allows the claimant's case to be tested for
P 777 adequacy, or alternatively, demands production of documents and demands answers
to questions by the respondent. If it does not ask, there is no possibility of refusal and
hence less opportunity for adverse inferences. This draws attention to the reason for
refusal. The more a party has a tenable reason for refusing production, the less legitimate
an adverse inference would be. It has also been suggested that a tribunal ought to warn
parties about the possibility that negative inferences may be drawn, (120) and give the
relevant party an opportunity to rebut the inference, otherwise due process challenges
may ensue. (121) Even if notification should not be seen as a legal gateway to the drawing
of adverse inferences, an appropriate warning may well be sensible and adds to the
evidentiary weight of the inference. If a party is invited to produce a document, given a
clear indication of the ramifications for failing to do so absent good reasons for failure
and provides neither the reasons nor the document, the arbitrator can be more confident
that the adverse inference is appropriate.
Another situation where a tribunal will have to assess the justification for refusing
production is where an order is made against a party on the basis that it is presumed
that it has control over the person in possession of the relevant document. If the latter
refuses to present the document, a tribunal ought to reassess its reasons for concluding
that there was sufficient control over the document holder in order to be confident that
adverse inferences can legitimately be drawn. It may also be harder to draw adverse
inferences from a failure of a party to present a witness it has some control over than a
document if the individual concerned simply does not wish to travel and cannot be
compelled against their will. (122) Human beings can always say no, documents cannot.
Webster raises a number of problems with the notion of adverse inferences under Article
9.5 of the IBA Rules of Evidence 2010 which allows for such inferences where a party fails
to make available evidence or testimony ‘without satisfactory explanation…’. First there
is a need to understand what the broad expression ‘satisfactory explanation’ might
15
entail. If a party has already objected and the tribunal has ruled against it, may it repeat
its objection or is it deemed unsatisfactory by the prior ruling? If the party raises other
matters, is it entitled to do so, not having alluded to these at the time of the initial
application? (123) Another problem arises from the fact that Article 9.5 allows for an
adverse inference when an objection is not taken in due time. Yet if an objection is valid
but too late, in some cases it will be difficult to determine just what adverse inference to
justifiably draw about the material itself. Another situation where it is difficult to
P 778 determine just what inference to draw is where there is a large volume of material that
is not produced, when some material is likely to be favourable and some unfavourable to
the party's position. (124) The situation is easy when the opponent has presented a prima
facie case, as the lack of documents simply means that the responding onus has not been
satisfied, but this is separate to the question as to when an adverse inference can itself
form part of the reasons for a decision.
A particular issue is whether there ought to be differences in approach where a State is a
party. This might arise because in various forms of international adjudication,
governments appear less inclined to respond fully to adjudicators' requests for
documents. (125) There should be no difference in such circumstances as the State has
agreed to adjudicate in good faith. The Iran–United States Claims Tribunal stated that ‘it
is an accepted principle that an adverse inference may be drawn from a party's failure to
submit evidence likely to be at its disposal.’ (126) In a separate opinion in the Case
Concerning the Barcelona Traction, Light and Power Company Limited, Judge Jessup stated
that ‘…if a party fails to produce on demand a relevant document which is in its
possession, there may be an inference that the document if brought, would have exposed
facts unfavourable to the party….’ (127)
In legal systems where there are some, albeit limited rights of appeal on questions of law
against arbitral determinations, there is a related question as to whether the view taken
by a tribunal in this scenario is a legal determination or simply a factual finding. (128) It
has been suggested that an inappropriately drawn adverse inference may lead to
challenges. (129) This may depend on whether the particular legal system would treat
these matters as substantive or procedural. It may also depend on the logic behind the
adverse inference. For example, if an adverse inference was drawn after a party was
inadequately notified of a production obligation, this would clearly be a procedural
concern.
P 779
10.4.9 Evidence of Intent where Relevant

At times, legal provisions will expressly or impliedly call for a determination of the
purpose, motive, object or intent of a party. A number of important questions arise as to
the degree of purpose when there are mixed purposes and whether subjective or
objective evidence of purpose should be relied upon. This would generally be a question
of substantive law but far too often, such laws fail to indicate whether the purpose
required is sole, dominant, significant or more than de minimus. Furthermore, they will
commonly fail to indicate the importance of subjective as opposed to objective
evidence. Questions of intent will typically arise with some of the more serious
allegations such as in relation to bribery or fraud or where there are contractual
exclusions for simple negligence, but not for conscious recklessness or worse.
10.4.10 Best Evidence

There are three senses in which the notion of best evidence in adjudicatory proceedings
can be considered. The first simply identifies the entitlement of the adjudicator to make
a determination based on the evidence presented, even if the totality is less than
adequate. In the Protiva case, the Iran–US Claims Tribunal considered that it was faced
with evidentiary gaps, but after reviewing the evidence presented, determined that
claimant's evidence was preponderant. (130) The second notion would imply some
obligation on each party to present the best possible evidence and the entitlement of
the tribunal to draw adverse inferences when it reasonably believes this has not
occurred. A third aspect involves consideration of which type of evidence is likely to be
the most influential. As noted above, civilian legal systems tended to prefer
contemporaneous documents as the most reliable, while common law systems placed
significant reliance on cross-examination to overcome the potential problems of self-
serving witness testimony after a dispute has arisen.
Best evidence must also be considered in a comparative sense. Because fact-finding in
law is about comparing contrary evidentiary material to find the preferred view, all
evidence must be viewed against appropriate frames of reference. As noted above, the
natural comparison appropriate for standard of proof tests is to balance one party' s
evidence against that of the other. Another relevant comparator is to consider evidence
presented as against evidence which might reasonably have been expected to be
presented. When discussing standard of proof, it was noted that a positive application of
best evidence standards would occur where a tribunal understands that there are good
P 780 reasons why better evidence is not available. A negative conclusion arises where a
party fails to bring the clearest evidence where that is thought to be within its control.
16
10.4.11 Fact-Finding Powers of a Tribunal to Justify Claims
As noted above in section 10.3.2.3, most rule systems either expressly or impliedly allow a
tribunal to engage in fact-finding exercises. (131) An important question is whether a
tribunal can exercise its independent fact-finding powers to identify a factual basis for a
conclusion different to the contentions of either party. This should not be so. A tribunal
should also not exercise broad powers to establish a prima facie case where the claimant
has failed to do so. Even this statement is overly general in the context of a scenario
where the respondent is in sole possession of a key document without which claimant is
unlikely to succeed. A tribunal which simply orders production in such circumstances is
proactively supporting the making out of the claimant's case.
10.4.12 Evidence from the Tribunal's Own Knowledge

In some domestic litigation systems there is the concept of judicial notice of facts. This
arises where the facts are seen as being of sufficient common knowledge to not require
proof. While this would be rare in international arbitration, the principle was applied in
the Nicaragua case by the ICJ. (132) While the party with the burden of proof must satisfy
it, in some instances a tribunal will accept that some propositions are so obvious that
proof is not required. (133) Civilian judges tend to feel more comfortable in making broad
factual determinations from their own knowledge. It has been suggested that ‘EC Courts…
seem to enjoy a great discretion as to the amount of personal experience or knowledge
they can put into their judgments in order to establish the factual background of a case.’
(134)
Where a tribunal member is an expert in a particular relevant profession, they may be
more inclined to use their own knowledge and not require formal proof. An example
would be standards of quality in commodity trade. The first issue is whether the
arbitrators are truly utilising their expert knowledge and are not relying on distinct
P 781 evidence to that presented by the parties. There is then a due process issue as to
whether and when a tribunal can take note of its own personalised knowledge. On the one
hand, arbitrators are often selected for such specific knowledge, hence it naturally flows
from their selection that they may employ their expertise fully. On the other hand, due
process obligations, requiring each party a sufficient opportunity to present its case,
mean that a tribunal should make the parties aware of its inclinations in that regard and
allow them to make contrary submissions and present evidence accordingly. (135) Due
process obligations may depend on the factual conclusions under consideration. Where
the knowledge is common knowledge, even a failure to notify will not have affected the
outcome. If it is a complex matter pertaining to the tribunal's own expertise, this is more
likely to be part of the process of dealing with expert testimony where full notification
certainly should be given.
10.4.13 Agreed Facts

Where the parties agree on facts, these are not in dispute and the tribunal should make
its determination consistent with the facts as agreed. A tribunal anxious to promote
efficiency might consider inviting parties to agree on whatever facts they can, so that the
tribunal may concentrate its attention on the areas of factual disagreement. It is always
desirable to try and narrow the areas of contention between the parties in any
adjudicatory process. To this end, some rule systems expressly call for parties to concede
or refute contentions from the other side. An example in the field of arbitration is Article
38 of the ICSID Additional Facility Rules. A related issue is whether a tribunal can or ought
to make costs orders against a party it feels was inappropriately unwilling to agree on
certain facts, notwithstanding its ultimate success in proceedings. At the very least, a
warning in that regard should be given if that is the intention. Cost issues are discussed
further in Chapter 15.
10.4.14 Admissions
While adjudicatory tribunals will commonly accept admissions as valid evidence, care
needs to be taken to properly understand the circumstances of the relevant utterance
and whether it can properly be seen as an admission of fact. Tribunals will commonly see
particular value in admissions against interest as a person's comments are more likely to
be believable when there is no vested interest in making them. An admission need not be
an express statement to that effect but could flow from inferences based on behaviour.
Where contemporaneous documents are concerned, a tribunal will commonly take the
P 782 view that a failure to object in writing to a writing received, is strong evidence of the
acceptance of its contents. (136)
10.4.15 Integrating Legal Approaches to Fact Finding

Previous sections have repeatedly noted that questions of burden and standard of proof
need to be looked at alongside other key evidentiary norms and the fact-finding
discretions that a tribunal has. It is appropriate to provide some concluding remarks
about the way tribunals might approach the integration of these elements. One of the
most important factors impacting upon burden and standard is the question of whether
there is a right to document production and the duty, if any, to present adverse evidence.
17
The practical implications for the party bearing the burden of proof are significantly
different where it must present a winning case from its own evidentiary sources, or,
conversely, where it can call for its opponent to produce adverse documents and
demand adverse inferences where there is a refusal to do so. Some arbitrators would
take the view that it is for the parties to present the appropriate evidence on which they
intend to rely and for the tribunal to apply relevant burdens and standards of proof to
the material presented. To other arbitrators, document production powers should be
used to ensure that the best evidence is available so that decisions are not made on
technical questions of burden of proof.
There is also the degree to which the tribunal will engage in fact-finding or questioning.
For example, if there is a dispute as to what was said at a particular meeting, with the
claimant alleging a concession and the respondent denying it, the respondent might be
asked to explain what the meeting was about, rather than simply submitting that the
claimant has not met its burden. (137) The evidentiary record will look different
depending on whether the tribunal asks such questions or not. A simple example
demonstrates the contentious policy challenges that may face a tribunal. Imagine an
American claimant suing a German company for breach of copyright. The American
company asserts that there is an internal memo in the German company's records that
admits that copying occurred and that it was intentional and knowingly illegal. Assume
P 783 also that the American claimant cannot win without production of a memo to that
effect. The tribunal orders production but the German company refuses, arguing that it is
against its view of justice to have to assist a claimant that itself does not have any
meaningful evidence of breach. The claimant argues that the tribunal should draw
adverse inferences from the refusal to produce and that such adverse inferences should
be enough to satisfy the standard of proof required. There is no clear solution to this
problem as each party is making irreconcilable contentions that are each highly
respected within their own jurisdiction. The key point to draw from the example is that
whatever view the tribunal takes as to the request for document production and the
drawing of adverse inferences, this has a fundamental impact upon the way burden and
standard of proof will apply. (138)
As noted above, the practical application of the burden and standard of proof may also
be impacted upon by the wording of the legal basis of the claim. For example, a contract
for sale of goods might indicate that the buyer may return faulty goods no matter how
minimal the fault. Conversely, the contract might say that the buyer cannot claim for
faulty goods without proof that these were knowingly provided. While the legal nature of
burden and standard of proof are identical in each scenario, the practical challenge
facing the buyer is vastly different in each case. Because due process norms and consent
are paramount, early proper communication with the parties is vital but even here there
can be pitfalls. A tribunal needs to be careful not to mislead the parties as to their
evidentiary requirements. The paradigm example of the problem occurred in Avco Corp v
Iran Aircraft Industries. (139) In that case, the claimant asked the tribunal at a pre-hearing
conference as to how it might establish amounts due on a large number of invoices. One
possibility was to submit all of the invoices and invite the tribunal to spend significant
time analysing them. An alternative suggestion was to engage an independent auditor to
certify as to the existence and amounts contained in the invoices. The tribunal chair at
that time indicated that the tribunal was not ‘enthusiastic about getting kilos and kilos of
invoices’, (140) approved the alternative, but in the final award, a differently constituted
tribunal considered that this method was insufficient as compared to providing the
invoices themselves. (141) Enforcement was denied for that reason. (142)
P 784
10.5 Interrogatories, Written Questions and Notices to Admit

Common law systems allow for interrogatories. These are lists of questions to be posed by
one party to the other where responses are required, subject to certain exceptions. The
aim of interrogatories is to refine the area of the dispute and allow the hearing itself to
be more efficiently conducted. The disadvantages of interrogatories are that they may
wrongly be used as part of a fishing expedition and add their own transaction costs to the
process. Those transaction costs are increased where disputes arise as to the propriety of
particular interrogatories and the obligation to answer them. Interrogatories are not
generally used in international commercial arbitration. The parties are of course free to
agree on any such process.
While there are no such formal rules in international arbitration, a tribunal's broad
discretion might allow it to draft lists of questions for the parties. (143) A tribunal might
seek to do so where it believes that such questions will promote fairness and efficiency in
the process. (144) Questions are likely to be more useful when they are clear-cut and help
to hone in on the issues. (145) For example, if a party is relying on pre-contractual
representations, questions might inquire as to the identity of the person said to have
made the representations and the exact wording of them. Conversely, most tribunals
would take the view that is for the party with the burden to present this evidence without
guidance from the tribunal. A tribunal might be more inclined to present written
questions in a documents-only arbitration to ensure that written submissions address the
matters of key concern. This is less important with oral hearings, where a tribunal has an
18
opportunity to question witnesses and/or counsel during the latter's submissions. Written
questions are also the essence of a tribunal's brief to a tribunal-appointed expert.
10.6 Proof of Applicable Law

Domestic litigation systems utilise principles of their own private international law by
which courts identify the content and meaning of any applicable foreign law. Legal
families differ between those who see proof of foreign law as a matter of evidence, to be
demonstrated by expert witnesses and documents, and conversely, those who consider
that all legal questions should be determined by the judges own knowledge or research.
Common law systems tend to take the former approach. This means that the party with
the burden of proof must provide sufficient evidence of that foreign law if it is to succeed,
P 785 although in many systems, this does not follow as a matter of course as there is often a
presumption that foreign law is identical to domestic law unless proven otherwise. There
is no such thing as ‘foreign’ law in an international arbitration, but simply the need to
determine the applicable law or laws based on party autonomy or the tribunal's
discretionary powers. Fouchard argues strongly that the content of foreign laws should be
treated as an issue of fact in international arbitration. (146)
A number of procedural questions arise. The first is whether there should be a
preliminary determination of applicable law. Related to that is the question whether
evidence as to a range of options should be presented to the tribunal in aid of its
determination. For example, conflicts of law approaches include looking to the place
with the closest connection to the transaction or look to the domicile of the person
exercising characteristic performance under it.
Once the identity of the applicable law is known, there are then questions as to its
content and meaning. Documents seeking to establish the content of the applicable law
should typically be presented, notwithstanding the suggestion from some civilian lawyers
that the tribunal's duty to know the law would not require this. (147) A range of secondary
sources may be admissible to assist the tribunal in understanding the meaning of the
primary texts. Various legal systems will also differ as to the importance of legislative
history and past cases as aids to understanding or as binding precedents in the case of
the common law. Even if the domestic legal system does not utilise the doctrine of
precedent, the tribunal ought to pay sufficient respect to municipal case law. For
example, in the Brazilian Loans case, the PCIJ stated that a tribunal of international law
should:
pay the utmost regard to the decisions of the municipal courts of a country, for it is with
the aid of their jurisprudence that it will be enabled to decide what are the rules which in
actual fact, are applied in the country the law of which is recognised as applicable in a
given case. (148)
A related question is the extent to which experts may give opinions on questions of
applicable law. The general rule is that an expert should indicate to the tribunal the
nature and content of the law but should not seek to opine on the way the law applies to
the facts before the particular tribunal. That is the function of the tribunal itself.
10.7 Evidence of Aids to Interpretation

In some cases a tribunal seeking to interpret a legal or contractual provision may be
willing to consider certain aids to interpretation for that purpose. Typically, such aids are
P 786 used to provide evidence of the likely intent or purpose of the legal instruments.
There are then evidentiary questions as to what kinds of materials are properly
admissible as aids and how this evidence should be utilised.
Where contracts are concerned, it would be necessary to consider the applicable law,
and the view it takes as to the use of such aids to interpretation. There may also be a
provision in the contract that seeks to limit the relevance of extraneous material,
although such provisions can themselves be problematic. Where domestic statutes are
concerned, the tribunal would follow the approach to statutory interpretation in that
jurisdiction which would typically identify the range of applicable aids and their
legitimate uses. Where international treaties are relevant in the field of investment
arbitration, interpretation under the Vienna Convention on the Law of Treaties also allows
for consideration of travaux preparatories. (149)
There can be problems with a number of the sources that a party might seek to rely upon.
Using the example of treaty interpretation, a statement of intent by a negotiator is not
ideal as evidence of the collegiate view of treaty signatories. The person may be partial
and may have failed to adequately distinguish between the objectives they sought to
achieve and the objectives that were actually reached. Parliamentary debates within a
State at the time it ratifies a treaty simply indicate its own view and not the collegiate
position. A comparison of the final treaty text with some rejected draft provisions might
be used to infer intent behind changes that were made, but in many treaty negotiations
there may have been a myriad of rejected texts, and it will often not be readily apparent
whether the rejection was based on a concern for the content or the mere form of
expression.
19
10.8 Economic, Scientific, Statistical and Accounting Evidence
Where statistical evidence is concerned, it is important to identify any assumptions used
and the methodology employed. Challenges to the assumptions and methodology would
be the typical way that an opposing party seeks to undermine the purported conclusions.
A tribunal may need to be briefed on important methodological issues, such as the
adequacy of sampling, in order to form its independent view as to the validity of the
statistical analysis. Similar concerns will often arise with causation analysis in damages
assessments, for example, where loss of profits or goodwill is being assessed in a complex
commercial and market environment.
Where scientific evidence is concerned, in some cases special attention may need to be
given to the appropriate way to address standard of proof or the reasonable justification
for a party's behaviour. As to standard of proof under scientific disputes, it was noted
above that if a dispute is whether a pharmacological product is safe, this needs to be
shown with a high degree of exactitude to be accepted as true. The situation may be
more complex when science is a basis of an analysis of reasonable regulatory behaviour.
P 787 For example, in an investment arbitration case where a governmental environmental
measure is argued to constitute an indirect expropriation, must the measure be based on
the preponderant scientific opinion to be reasonable or may it be based on a respected
minority view, perhaps subject to a heightened concern under a precautionary principle?
This is primarily a question of interpretation of the treaty norm itself, and not an
evidentiary question per se, but the interpretation selected will impact on the nature
and degree of evidence required to justify the governmental action. A number of
permutations may arise depending on whether the challenge is to a particular legislative
enactment, or to a bureaucratic determination under it, or to a domestic court's
application of the provisions.
Where highly technical documentary evidence is concerned, an important question is
whether the person presenting this to the tribunal has sufficient expertise to be able to
explain the nature, contents and relevance of the documents. For example, an
accountant may be the most appropriate person to present evidence about stock
valuations. An engineer may be the most appropriate in dealing with construction
drawings. Such issues need to be considered in conjunction with the use of expert
witnesses and the possible appointment of an expert by the tribunal. This is discussed in
sections 12.10 to 12.14 below. A related issue is for the tribunal to have the requisite
expertise.
10.9 Objective Evidence and Subjective Evidence

In the majority of cases, commercial adjudication is concerned with objective evidence,
primarily the logical inferences that may legitimately be drawn from documents and oral
testimony. Subjective evidence looks at the state of mind of relevant persons. In some
cases, subjective evidence or at least subjective conclusions are central, for example,
where an allegation of bad faith is made. In other cases it is not readily apparent how the
two forms of evidence should be utilised. An example where different outcomes might
apply depending on which form of evidence is paramount would be a case about an
alleged pathological arbitration clause. An objective approach looks at the clause itself,
and perhaps other documents to see what reasonable inferences can be drawn. A
subjective approach would analyse the beliefs of the signatories to the clause to
determine what they actually intended at the time. Some arbitrators would recommend
a hybrid approach in such circumstances. (150)
P 788
10.10 Evidence from Prior ASR Processes between The Parties

There are two aspects of the use of evidence from prior processes. The first is the general
admissibility question which deals with potential confidentiality issues. The second is
what probative value there is with any material admitted. The discussion below should
also be integrated with section 10.16.7 dealing with confidentiality generally. Some
dispute resolution clauses call for the parties to negotiate in good faith and/or utilise
mediation prior to going to arbitration if the dispute is not otherwise resolved. Mediation
is essentially confidential and without prejudice to adjudicatory proceedings. (151) The
position will commonly be expressed in well developed mediation rules. (152) A good
mediator will ensure that the parties have agreed to this at the outset. Hence material
presented during the mediation should not be admissible in subsequent arbitral
proceedings for that reason alone, but should be produced by a party in control who
seeks to rely on it and may be the subject of document production requests. Offers of
settlement are certainly not admissible, (153) although if the parties disagree as to
whether a settlement had actually been agreed upon, that goes to the jurisdiction of the
tribunal and would need to be resolved. (154) The privilege should also apply to internal
documents prepared specifically for the purposes of the ADR processes. (155)
In some cases a dispute resolution clause has a preliminary adjudicatory process prior to
arbitration. For example, under FIDIC Conditions of Contract for Works of Civil Engineering
Construction, Part I General Conditions Clause 67, there is first an engineer's decision
20
after which an aggrieved party can commence arbitration. The clause gives the arbitrator
the power to review and revise any of the engineer's decisions and opinions. The
evidence before the engineer and the engineer's decisions are admissible before the
P 789 arbitration which is not limited to that material. The engineer is not disqualified from
being called as a witness to give evidence before the arbitrator. In some cases there
may be a dispute as to whether arbitration is premature and whether the preliminary
steps have been taken or not. In such a jurisdictional dispute, evidence as to the conduct
of the earlier processes is central and must be admissible.
10.11 Evidence and Findings in other Arbitral Cases

At times there may be a number of arbitral proceedings between the same or similar
parties on similar issues. In such circumstances a question may arise as to the
admissibility and weight to be given to evidence from one forum, tendered to another.
The answers will vary depending on the type of evidence being relied upon, but there are
also a number of policy questions that arise. Would it be unfair from a due process
perspective to rely on such evidence? Conversely, would it be a breach of a duty of
efficiency to fail to at least consider saving time in this manner?
Once again the gateway issues are confidentiality, if any, and the probative or binding
nature of evidence and findings from other cases. Whatever the view as to admissibility,
the second tribunal must still make an independent finding of fact. A finding in an earlier
case in favour of the person with the burden of proof in the latter, should not operate to
shift that burden in the latter instance, although if admitted and if sufficiently probative,
the onus can shift in a practical sense. A tribunal might also need to consider whether an
admission in an earlier case between the same parties could constitute an estoppel in
subsequent proceedings. A related question is whether a finding of fact in the earlier
case could constitute an issue estoppel in subsequent proceedings. This is also
addressed in section 8.10.3 and the following section dealing with issue estoppel.
Evidence from other proceedings might also be tendered to show that the opposing party
has made contradictory assertions in different fora or has been selective in evidence
submission in one or both. Even if such evidence is admitted, it does not readily show
which version is to be believed, although it can undermine the veracity of that party
generally.
The situation as to confidentiality may depend on the rules applicable in the prior case,
although that is controversial as most would see arbitration as presumptively
confidential. Nevertheless, significant differences in view can be discerned from a range
of cases dealing with confidentiality in arbitration. (156) Under some rules,
confidentiality is indirectly enshrined. For example, Article 26(3) of the ICC Rules 2012
provides that persons not involved are not to be admitted to the hearings without
P 790 express agreement. (157) Article 27.4 of the ICDR Rules states that ‘an award may be
made public only with the consent of all parties or as required by law.’ Article 30 of the
LCIA Rules says that parties ‘undertake as a general principle to keep confidential all
awards in their arbitration, together with all materials in the proceedings created for the
purpose of the arbitration and all other documents produced by another party in the
proceedings not otherwise in the public domain – save and to the extent that disclosure
may be required of a party by legal duty, to protect or pursue a legal right or to enforce
of challenge an award in bona fide legal proceedings before a state court or other
judicial authority.’ (158) Laws of the latter kind may include disclosure rules to stock
exchanges or to the tax authorities. In the stock exchange example, the information can
be used by anyone as it is in the public domain. In the tax example it is not. If
information is already in the public domain, it will not be rendered confidential simply
because it has been incorporated in an arbitration. (159) The enforcement stage also
differs as to confidentiality, given that it is implemented where necessary through
national courts, which are generally open.
10.12 Issue Estoppel, Collateral Estoppel and Preclusion

While most legal systems contemplate the preclusive effect of previous judgments,
domestic systems have varying approaches with quite technical rules. This chapter is not
concerned with general preclusion under principles such as res judicata, but instead with
evidentiary preclusion. (160) In the common law this is described as issue estoppel, issue
preclusion or collateral estoppel. The policy is that if a particular issue has already been
litigated between parties, it should not be re-litigated by the loser. It can even apply by
way of adverse inference where a party is seen as abusing process if it raises a factual
claim in a subsequent matter that should have been asserted earlier. (161) It has been
suggested that issue estoppel does not apply in civil law jurisdictions, (162) although the
way res judicata can apply in such jurisdictions can have a similar impact. (163) While
P 791 arbitral awards and international tribunals have consistently respected the principle
of res judicata, the preclusive effect of issue estoppel-type scenarios is more complex
and often dependent on conflicts or national law approaches. (164)
10.13 Evidence from Local Cases or International Cases

If a domestic or international case is conducted in an open forum, confidentiality issues
21
may be diminished, although there is no general access to all evidentiary material in
most legal systems. At times the question is not one of evidence from those cases but an
allegation of fact as to the behaviour in the case itself. For example, in some investment
arbitration cases, the issue in dispute could be the behaviour of a domestic court and
whether its actions on behalf of its government constituted an indirect expropriation or
otherwise breached fair and equitable treatment. In such instances, the transcripts and
judicial reasoning would be relevant evidence. Given that the arbitral tribunal would not
have heard the actual evidence before the local court, care needs to be taken in
effectively sitting in judgment on that court's behaviour in such circumstances. In other
cases there may be an issue estoppel-type scenario as discussed in the previous section.
This would require commonality of parties.
10.14 Ex Parte Hearings

If a respondent fails to participate in the arbitration, the claimant must still meet its
burden of proof and prove its claims. Arbitral rules indicate that a tribunal may proceed
but direct that a failure to attend is not an admission of the claims made against it. (165)
In a technical sense, this situation does not change questions of burden and standard of
proof. The tribunal makes findings on the material presented before it. If the claimant
does not produce enough evidence to support its claims, it should lose. A tribunal might
even draw adverse inferences against claimant if documents presumed to exist are not
presented and no adequate explanation is provided.
The tribunal can have a significant impact on whether claimant adequately proves its
case. A tribunal could demand production of certain documents, or could engage in
questioning of witnesses that would seek to elicit responses that a reasonable cross-
P 792 examination might produce. This is a fairly well accepted approach but places a
greater burden on the tribunal than when both parties are present. Default proceedings
are considered more generally in section 6.15.
10.15 Change of Tribunal Composition

Because a tribunal's mandate is to consider the evidence and make a decision, an
important evidentiary question is to determine what should happen if an arbitrator dies,
resigns or is replaced. It is important that the rules express clearly that a truncated
tribunal may continue with the case or that evidence does not need to be reheard if a
replacement arbitrator is introduced, otherwise general principles of due process might
require that the matter be reheard in its entirety. Not only would this waste time and
cost, but there would also be problems in looking for variations between a witness'
testimony at different times. (166)
10.16 Admissibility and Inadmissible Evidence

Admissibility of evidence is generally seen as a procedural matter. (167) In the arbitral
context, it will usually be subject to broad discretionary rights of the tribunal. Numerous
rules indicate that the tribunal shall determine the admissibility, relevance, materiality
and weight of evidence. (168) The issues as to admissibility and grounds for refusal of
documents also apply to witness testimony and reasons to refrain from answering
questions or even appearing as a witness. This section deals with admissibility issues
generally and also includes specific sub-categories where admissibility may be
challenged.
International adjudicatory bodies generally consider questions of weight in relation to all
submitted evidence and do not wish to hear separate claims as to admissibility. In the
WTO context, a panel considered that ‘there is little to be gained by expending our time
and effort ruling on points of “admissibility” of evidence vel non.’ (169) Redfern and
Hunter nevertheless caution advocates from particular legal systems that are presenting
P 793 before tribunals whose members come from different legal families, as the latter, if
inexperienced in arbitration, may nonetheless display their domestic predilections. (170)
It has been suggested that the liberal practice of international tribunals to admit
virtually any evidence subject to evaluation of relevance, credibility and weight arises
from the absence of appeal, the common problem of the unavailability of ‘best’ evidence
and problems with deciding cases on technical evidentiary rules. (171) The lack of
appeals as a reason for liberal admissibility rules may not be so powerful given that
there are limited appeals on factual matters in most jurisdictions. Concerns as to due
process will typically be the main reason why tribunals are reluctant to limit or exclude
evidence. (172) Tribunals are concerned to preclude arguments that exclusionary
decisions have impacted on a party's right to be heard, although the right to a full
opportunity to present a case and to adversarial proceedings does not presumptively
override a tribunal's power to determine admissibility or weight of evidence.
International arbitration would not be expected to follow common law exclusionary rules
of evidence. Those rules were largely developed because jurors as decision-makers were
not trusted to have the ability to deal with the relevance and weight of material that
could have a strong prejudicial value as compared to its probative value. In doing so, the
common law favoured liberty over truth, being concerned to exclude relevant material of
22
modest value where the prejudicial effect is likely to be significant. While that is the base
position, there will from time to time be exceptions. Inadmissibility would usually be
based on general unreliability or because of a higher prejudicial to probative value. At
other times, public policy may be a reason for excluding otherwise probative evidence,
for example, privileged or otherwise confidential information, or illegally obtained
evidence. The following sections deal with some of the more significant categories of
contentious evidence.
10.16.1 Circumstantial Evidence

All adjudicatory systems are prepared to consider and draw inferences from
circumstantial evidence. Once again, a tribunal might vary in its leniency depending on
the ability or otherwise of the parties to obtain more direct forms of evidence. Where
international adjudication is concerned, it will commonly be difficult for a party in one
country to obtain evidence in another country, particularly where the evidence is in the
P 794 control of an adverse party. In the Corfu Channel case, the ICJ said:
such a state should be allowed a more liberal recourse to inferences of fact

and circumstantial evidence. This indirect evidence is admitted in all systems
of law, and its use is recognised by international decisions. It must be
regarded as of special weight when it is based on a series of facts linked
together and leading logically to a single conclusion. (173)
In a dissenting opinion, Judge Badawi Pash described circumstantial evidence in
international law to mean ‘facts which, while not supplying immediate proof of the
charge, yet make the charge probable with the assistance of reasoning.’ (174)
10.16.2 Uncorroborated Evidence

While there is no general obligation to corroborate evidence, a failure to do so when this
could be expected to be reasonable, might go to the question of weight and even allow
for adverse inferences in some circumstances.
10.16.3 Hearsay
Arbitral tribunals will typically allow hearsay evidence to be submitted but are not
bound to do so. (175) Hearsay is ‘a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.’ (176) It is an example of indirect evidence. While common law jurisdictions
typically exclude hearsay evidence, there are also numerous exceptions to the rule.
Some such jurisdictions have also relaxed the admissibility of hearsay evidence in civil
matters. (177) While such evidence may be admitted, a tribunal must still consider what
weight to give it. The ICJ in the Nicaragua case considered that hearsay testimony is not
‘of much weight’. (178) From time to time such evidence has been excluded by the Court.
(179) On the one hand it was suggested that hearsay evidence was customarily accepted
P 795 by the Iran–United States Claims Tribunal, (180) while Judge Aldrich suggested that the
Tribunal consistently refused to base decisions upon hearsay. (181)
One particular form of hearsay evidence is press reports. The ICJ has suggested that
‘although it is perfectly proper that press information should not be treated in itself as
evidence for judicial purposes, public knowledge of a fact may nevertheless be
established by means of these sources of information.’ (182) An example may be
newspaper reports of share prices or weather conditions. Conversely, a tribunal is
unlikely to see a newspaper report as clear enough evidence of the reasons for contract
repudiation or expropriation. A tribunal ought to look at the nature of the testimony,
consider what the best evidence might have been and also consider the particular
party's ability to present that evidence in deciding what importance to place on the
hearsay. Some of the matters considered relevant by domestic courts can also be a
useful guide. The Civil Evidence Act 1995 (UK) invites regard to be had, inter alia, to:
(a) whether it would have been reasonable and practicable for the party by whom the
evidence was adduced to have produced the maker of the original statement as a
witness;
(b) whether the original statement was made contemporaneously with the occurrence
or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(183)
(e) whether the original statement was an edited account, or was made in
collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as
to suggest an attempt to prevent a proper evaluation of its weight. (184)
If hearsay is allowed, the tribunal should ensure that there is appropriate exploration of
the witness's knowledge and recollection. A witness of fact is only to attest to the facts
P 796 and if it is a comment made by another person, the accuracy of recollection is what is
important. (185) One potential way that hearsay might be overvalued inappropriately is if
23
one witness tries to cover matters best able to be attested to by other persons, simply to
save time and expense.
Another response to hearsay evidence might be to ask the tribunal to use whatever
powers it has to compel the statement maker to attend as a witness. (186)
10.16.4 Parol Evidence

As noted, some systems treat some evidentiary questions as substantive or quasi-
substantive. For example, if a contract dispute was subject to common law of contract, a
parol evidence rule may apply, restricting entitlement to look at extraneous evidence to
modify express terms of the contract. Lew, Mistelis and Kröll suggest that treatment of
parol evidence is ‘in the grey zone between substance and procedure’. (187)
Even if a substantive approach is to apply, if the document to be interpreted is an
arbitration agreement in a contract subject to a common law choice of law clause, it
needs to be understood that without clear wording, such a choice of law does not
necessarily apply to the arbitration clause itself, although it may. (188) Similar questions
would arise with respect to other agreements that purport to impact upon arbitral rights.
(189) Absent an agreement on applicable law, Lew, Mistelis and Kröll argue that modern
lex arbitri do not constrain arbitrators to follow any national approach. (190) They refer to
three reasons why a broader approach is to be preferred. First, rules of evidence in court
proceedings in the Seat of arbitration should not naturally apply to arbitration. Secondly,
allowing for flexible and incremental development of appropriate rules on a case-by-
case basis promotes equality and satisfies the parties' needs and expectations. Thirdly,
such an approach can help bridge cultural gaps. (191)
P 797
10.16.5 Demonstrative Evidence

Born and Tschanz each refer to demonstrative evidence in the sense of representations
which depict and explain evidence otherwise submitted. (192) This includes diagrams,
charts, graphs, models and even computer simulations. In some cases, such material is
simply a way of arranging and synthesising properly admissible evidence and would thus
be non-contentious. In other circumstances, the depiction aims to be persuasive in and
of itself. Care needs to be taken to ensure that the parties and tribunal all know the
intended use. If it is to be of evidentiary weight, then its probative value needs to be
properly assessed, including the validity of its underlying methodology.
10.16.6 Illegally Obtained Evidence

There is no to clear view in public international law as to whether illegally obtained
evidence should be accepted by a tribunal. (193) Such evidence was allowed in the Corfu
Channel case. (194) Where international arbitration is concerned, it is likely to be a
discretionary matter for a tribunal and may depend on the circumstances, (195) in
particular, who obtained it illegally. If the party presenting that evidence can be said to
be in breach of its good-faith obligations under the arbitration agreement, then there
may be more justification for exclusion. Conversely, if in an investment arbitration, such
evidence presented by a State shows that it deserves to succeed on the merits but that
normal police procedures were not followed, an arbitral tribunal might be less concerned
with general domestic regulatory principles such as those demanding that police officers
follow strict procedures in obtaining evidence. A contrary view might also be taken.
10.16.7 Confidentiality
The key aspect of confidentiality in the context of evidence is whether confidential
P 798 material can or should be produced to the tribunal. There are other crucial
confidentiality issues in arbitration, such as general confidentiality over proceedings and
outcomes. Related to that are the mechanisms a tribunal should use to ensure that
confidentiality is protected as far as possible and ensure that the material is only used
for the purposes of the arbitration. For this and the following two chapters dealing with
evidence, the key questions are whether confidentiality can be a basis for refusal to
produce documents or answer questions. Such claims cannot be made vis-à-vis a party in
whose favour there is a contractual right to information. The following material deals with
cases where there are no such substantive rights.
As noted in the following chapter, one of the grounds for excluding evidence under the
IBA Rules of Evidence 2010 is commercial or technical confidentiality that the arbitral
tribunal determines to be compelling. (196) Section 10.17 below deals with an important
sub-category of privilege, which is also an express ground under those Rules. Section 10.11
above looked at whether evidence and outcomes from previous arbitrations are subject
to confidentiality obligations interfering with admissibility. If the parties are identical,
there should be no additional confidentiality concerns as between the two disputes. If
the parties differ, this raises broader issues as to confidentiality generally and also as to
due process, where one current party at least was unable to make submissions in the
process leading to the earlier factual findings.
At one extreme, arbitral scholars believe that it is an inherent element of arbitration that
24
there is a general duty of confidentiality. It might be seen as an important aspiration of
commercial parties to deal with their disputes in a way which does not adversely affect
their status in the market place through bad publicity. Many disputes also deal with
confidential aspects of technology and business know-how. At the other extreme, some
argue that an undue concern for confidentiality comes at the expense of transparency
and the ability to promote consistency through the adoption of similar logic to other
arbitral tribunals. Arguments as to consistency are themselves contentious given that
there is no binding doctrine of precedent in arbitration. Furthermore, open recourse to
other awards will not necessarily ensure consistency or streamlining of reasoning as this
may simply give competing advocates more irreconcilable cases to build ever more
costly submissions around. Where broad notions of confidentiality are concerned, there is
a general but not uniform view that this is inherent in arbitration. The Australian case of
Esso v Plowman (197) was highly controversial, arguing that there needs to be a positive
agreement in relation to confidentiality for it to apply. A related issue as noted above is
that there will also be issues as to admissibility of documents used in a prior arbitration
in terms of confidentiality obligations flowing from the earlier arbitration. The common
law does not consider that confidentiality duties to third parties are a bar to discovery
P 799 rights. (198) The policy preference in litigation may not apply to arbitration as the
former considers that a private promise of confidentiality must yield to the general
public interest in the administration of justice. (199) The situation might be different if
the prior arbitration involved the same parties.
Where there is a claimant common to two arbitrations on the same subject matter
without a joinder provision, for example an engineering company seeking damages on
non-performance of capital plant both against the designer and the manufacturer, there
may arise a possibility of double recovery by the claimant. Depending on the applicable
law it is open to a tribunal to consider ordering disclosure of the detail of the first
arbitration on the basis that public policy considerations on unjust enrichment would
override a confidentiality objection to disclosure. (200)
These arguments do not apply to the question whether inter-party disputes should allow
each to claim confidentiality over material. Where evidence is concerned, there is an
important difference between inter-party confidentiality and confidentiality vis-à-vis the
rest of the world based on what has occurred between them. Inter-party behaviour
should be based on obligations to avoid surprise and to cooperate in good faith in the
resolution of the dispute. Thus there should only be limited grounds for withholding
confidential evidence that is material to the dispute. There are a range of permutations
and potential conflicts issues that may arise. Some documents and some forms of
information are considered confidential per se. Some are considered confidential from
the perspective of the party against whom a compulsion order is sought. In some cases,
that party will have a claimed duty of confidentiality vis-à-vis a third party. This can be a
matter for a tribunal's discretion. (201) Circumstances will vary depending on whether the
confidential information is that of a party or not. There may also be situations where it is
arguable that confidentiality has been waived. Applicable rules of waiver may be a
conflicts question and may be hard to classify. While the tribunal is always entitled to
draw adverse inferences from a failure to provide information, the justification for doing
so only arises in circumstances where there are no legitimate grounds for the failure.
Where confidential information is involved, there would be a need to consider whether
this itself is a ground for valid refusal to provide information, before adverse inferences
can be drawn.
Confidentiality can simply be seen as one procedural element to be agreed upon from
time to time by the parties. Party agreement should normally be paramount, although if
a tribunal has a broad duty of confidentiality per medium of the nature and status of
arbitration, this could even mean that an arbitrator may declare documents to be
confidential regardless of the wishes of the parties. Where a State party is involved in
P 800 investment arbitration, it cannot rely on its own domestic laws to avoid its broader
obligations under an international treaty. Nevertheless, Article 9.2(f) of the IBA Rules may
apply in terms of political sensitivity.
In appropriate circumstances, a tribunal could deal with confidentiality concerns by
directing that confidential information be redacted and/or that non-confidential
summaries be provided. This will only be satisfactory if the material thus produced fulfils
the same evidentiary function as the confidential material excluded. Other approaches,
such as limiting access to the tribunal or even to the tribunal chair are technically
possible but are not recommended absent party agreement, as it could lead to
challenges in terms of each party's right to be fully heard. (202) Even party agreement
may not suffice given that a party cannot waive a mandatory entitlement. Because of the
divergence of views, it makes sense for a well-drafted lex arbitri to address the issue.
Nevertheless, because of cultural differences and varying policy preferences and the
need to integrate confidentiality obligations into broader disclosure obligations to third
parties, there has not been a single harmonised position adopted in various rules. A
tribunal may wish to deal with this in terms of reference or an early procedural order.
An important aspect of the duty of confidentiality is how an arbitrator who is appointed
in a number of related matters is to deal with information obtained in one case, when
deciding another. This may depend on the identities of the parties in each case. The
25
more similar they are, the more the second set could be taken to have impliedly
consented to an arbitrator that cannot wholly shed his or her mind of information
previously obtained. (203)
10.17 Privilege and Professional Secrecy

10.17.1 Introduction
The previous section looked at confidentiality in evidentiary matters generally. This
section looks at one significant sub-topic, being that of privilege. The concept of privilege
covers a range of matters that may arise before, during and after arbitral proceedings.
This section seeks to provide an overview of the concept, its relevance to evidentiary
obligations, the way a tribunal identifies the applicable law and the way a tribunal
makes findings of fact as to entitlements to claim privilege. The analysis is at some length
owing to the significant divergence of opinion on the topic and the lack of an emerging
P 801 practice in the field. The key category is that of legal professional privilege,
sometimes described as professional secrecy or confidentiality in the civilian tradition.
(204) This is given separate attention below in section 10.17.10. As well as legal privilege,
claims for confidentiality might be made in some jurisdictions with regard to
communications between spouses and other family members, medical professionals and
religious authorities, financial advisers and journalists. (205) There may also be special
rules in relation to self-incriminating statements. (206) Some would argue that certain
categories are sufficiently well respected to constitute general principles of law or
transnational public policy. (207) Article 9.2(f) of the IBA Rules of Evidence 2010 also
refers to ‘grounds of special political or institutional security’ which would cover privilege
in relation to State secrets. (208) While not directly applicable to arbitration, general
principle Article 18 of the ALI/UNIDROIT Principles of Transnational Civil Procedure (2004)
provides that ‘effect should be given to privileges, immunities, and similar protections of
a party or non-party concerning disclosure of evidence or other information.’
Even if privilege is to be supported, there are complex and unresolved questions as to
which law is applicable, whether conflicts or other methodologies should be employed,
how to deal with differing privilege laws of each party given the need for equal treatment
and the persons or communications over which privilege applies. Arbitration has no
established norms. The parties can agree as to the nature and relevance of privileged
communications but such agreement would be rare. Arbitral statutes and rules rarely
discuss evidentiary privileges. Nor do they proscribe the right to claim such privileges. It
is broadly accepted that privileges may be claimed, although there is no consensus on
the exact ambit of each.
10.17.2 The Nature of Privilege

While common law speaks of privilege and civilian legal jurisdictions tend to speak of
P 802 confidentiality, the latter is the guiding policy criterion in all systems. A privilege
exception to disclosure is a policy choice of confidentiality over probative value for some
broader systemic objectives than the identification of truth in the instant case. One
policy reason to perhaps limit privilege and other confidentiality claims in arbitration is
that arbitration itself is confidential and disclosure can thus be limited to persons for
whom it is necessary for the adjudicatory processes.
10.17.3 Tribunal Discretion and the Applicable Law

While privilege is generally respected, there is a need to consider its ambit and any
exceptions. In determining the relevant rules, party autonomy should first be considered.
To the extent that party autonomy is paramount, consideration could be given to such
issues in the arbitration agreement although that is highly unlikely. Once a dispute arises,
even early consideration is likely to lead to polarised positions as at that stage each
party knows the practical implications of disclosure of documents held by its
independent and in-house counsel. Hence it will typically fall for determination by the
tribunal. Agreement might be reached by selection of broader principles that cover the
issue, such as the IBA Rules of Evidence 2010. Failing such agreement, it needs to be
understood that arbitral statutes and rules rarely discuss privilege expressly. Hence, it
will commonly be subject to tribunal discretion. The first question is whether a law of
privilege should be identified and if so, which. Historically, it appears that many
arbitrators approached privilege questions through conflict rules. Conflicts issues may
also arise in the context of mandatory laws, where for example, the question is whether
privilege may be claimed in respect of competition law or antitrust alleged violations.
Article 9.2(b) IBA Rules of Evidence 2010 allows for objections based on privilege ‘under
the legal or ethical rules determined by the Arbitral Tribunal to be applicable.’ This does
not confine a tribunal to a pure conflicts approach. While the Working Party for the 1999
IBA Rules considered that it was important that privileges be recognised, it did not seek
to articulate the appropriate applicable law. (209) The IBA Rules of Evidence 2010 added
further criteria but did not opt for a pure conflicts approach, although the reference to
‘applicable’ rules remains. The IBA Rules as to privilege are addressed further in section
10.17.9.
26
There are a number of problems in using strict conflict rules to deal with privilege issues.
(210) First, there is a classification question as to whether privilege is a matter of
substantive or procedural law. Civilian jurisdictions treat it as procedural while it has
been considered as substantive in some US cases. (211) In England, legal privilege has
P 803 been acknowledged as difficult to categorise between procedure and substance,
having features of both. (212) In addition to the uncertainty of classification, there are
problems with each categorization. If privilege is procedural, the lex arbitri will typically
leave it as part of the broad discretion of the tribunal with no further guidance. The
domestic privilege laws of the Seat should not apply even as a mere presumption, as
rules suitable for litigation in the Seat would hardly be intended by parties to an
arbitration who looked for a neutral venue supportive of the arbitral process. Where the
parties do not select a Seat, another problem with this approach is that at the time of the
relevant communication, one cannot know what law of privilege would apply and hence
what protection is provided. A tribunal or institution selecting a Seat would also have
problems if the choice favoured one party as to privilege laws. Conversely, treating it as
substantive law would be problematic in that parties rarely select an express law of
privilege. Selecting a law broadly applicable to a contract would not typically be
intended as an agreement covering privilege issues. Forcing parties to consider such
questions at the negotiation stage could undermine the negotiation process. To the
extent that privilege is a substantive matter, the tribunal might be under a more
constrained discretion than is the case with procedural matters. This is so because lex
arbitri provisions dealing with choice of substantive law may require a conflicts
methodology, albeit allowing the tribunal to choose which conflicts rules to apply. (213)
If the parties have not made any selection, then the tribunal would still have broad
discretions as to applicable substantive law. Applying the law of the domicile of the
person exercising characteristic performance would hardly seem appropriate if the
question is the privilege applicable to another party. If a tribunal sought to apply a
closest connection test, commentators have pointed to a range of potentially relevant
factors. Sindler and Wüstemann (214) identify: the law of the contract; the lex arbitri; the
domicile of the relevant party; the domicile of counsel; the place any document in issue
was drafted; the place where the information was provided; the place where the
document is kept; the law providing for the ethical and other duties of counsel; and the
law of the State where the award is likely to be enforced. Petrochilos considers
additional factors, being the law under which the document was produced or the law of
the party who received the document. (215) Berger points out that a closest connection
test may need to look at the events or the communication in applying such a test. (216)
P 804 The multiplicity of factors implies that a conflicts approach may be highly problematic
where parties come from different jurisdictions as might their counsel, and appear before
arbitrators from different jurisdictions, in a different Seat and where relevant documents
may have been created in other places.
Other problems with a conflicts approach are that domestic rules may not necessarily be
intended for arbitration, being concerned with the balance between truth and effective
legal advice in a domestic litigation system. The policy choices made at the domestic
level are also highly influenced by the view the country takes to issues of discovery.
Generally speaking, the more extensive the document production obligation, the more
clearly defined are the exceptions such as privilege. (217) Where arbitration is concerned,
leaving document production to a broad discretion of a tribunal but applying strict
conflict approaches to privilege questions would lead to a potential policy mismatch.
There is no consensus in international litigation either. The ALI/UNIDROIT Principles of
Transnational Civil Procedure (2004) drew attention to the law of the place with the most
significant relationship to the parties to the communication. (218) The 1970 Hague
Convention on the Taking of Evidence Abroad in Civil and Commercial Matters allows for
claims of privilege under the law of the State of execution or the State of origin and
allows for declarations to respect the laws of a State with higher levels of protection. (219)
EC Regulation 1206/2001 also allows for the application of the highest level of protection.
(220)
10.17.4 Cumulative Approaches

Applying domestic rules may lead to parties being treated unequally if the conflict rule
leads to documents and communications of different parties being treated differently.
That could offend against due process norms of equal treatment. The party denied access
could also assert an interference with its right to present its case. An approach that seeks
to equalise the law applicable to both parties still has to consider which regime of the
P 805 two is applicable and whether one party can waive its more preferential rights to deny
those to its opponent for strategic reasons. (221) Another approach is to attempt to
consider cumulatively various national laws that may have a connection. (222) It is not
clear whether this should be restricted to the parties' own laws or whether it includes the
law of the Seat or the law most closely connected to the evidence. (223) If the laws are
identical, a tribunal can feel comfortable. If not, the next question would be whether the
higher or lower level should be chosen.
10.17.5 Lowest Common Denominator

One approach is to look for the lowest common denominator in protective standards.
27
(224) Meyer argues for this as the starting point and then a consideration of whether there
are any reasons to apply a higher standard. To that end, he advocates considering the
rationale underlying the privilege and for the tribunal to then determine whether in the
arbitration context, that justifies interference with best evidence of the truth. It is not
clear how tribunals from different legal backgrounds could be expected to uniformly and
consistently make such determinations, although the aspiration is sensible. As noted
below, however, such an analysis could even lead to a highest common denominator
presumption. (225)
10.17.6 Most Favourable Privilege

Conversely, Schlabrendorff and Sheppard advocate the application of the ‘closest
connection’ test and recommend an adjustment where the application of this test would
lead to different privileges for each of the parties or for different categories of
P 806 documents. (226) As to the adjustment, they advocate the application of the most
favourable privilege. This is the approach in the CPR Protocol and the ICDR Guidelines,
(227) as well as the Hague Convention and the EC Regulation noted above. The authors
rightly point out that the ambit of privilege entitlements relates strongly to the ambit of
presumptive production obligations. As noted above, the broader the latter, the broader
the former. As international arbitration has gravitated towards stronger production
obligations than civilian practitioners were used to, the suggestion is that this supports a
similarly more favourable privilege approach on an equal treatment basis. (228) Another
policy reason to support this approach is that legal privilege does not deal with direct
evidence in relation to the dispute which should be produced anyway, but rather, deals
with information which is generally a matter of opinion or admission. While it is true that
privilege may sometimes apply to unfavourable facts communicated to external counsel,
it is at least arguable that such facts should have been disclosed in their own right. At the
very least, communicating a fact to counsel should not shelter the fact from a primary
disclosure duty that otherwise exists. Berger also argues that such an approach does
justice to the reliance interests of parties who should feel that they will not be required
to produce information considered privileged under their own laws and that such an
approach avoids conflicts with public policy. (229)
Schlabrendorff and Sheppard rightly concede that in some cases it may be difficult to
determine just which set of privilege rules are most favourable when there are a
multiplicity of factors including ethical standards, waiver and inference. (230) Excluding
relevant evidence may also increase the chances of due process challenges. (231)
P 807
10.17.7 Equality and Reasonable Expectations

Some tribunals have felt unconstrained by conflicts methodology. (232) Other approaches
might look at equal treatment and reasonable expectations of the parties. Broad notions
of equality might mean that one party should not be privileged in relation to the kind of
evidence it must produce, otherwise the elements of the contest are unequal. (233)
Reasonable expectations as a test, seems consistent with the consent basis of
arbitration. While equal treatment and reasonable expectations each have merit, they
are difficult to define and reconcile. Does equal treatment mean applying to each their
domestic rules or finding a common rule to apply to each? In the latter event, if it is the
rule of one party and not the other, is that true equality? An example would be the
internal notes by in-house counsel as a background to the drafting of the central contract
where the parties' legal systems have differing approaches to in-house counsel privilege
and where the applicable law of the contract allows for extraneous aids to interpretation.
Raeschke-Kessler suggests that under this approach a party should only be able to call
for production of internal documents to the extent that it is itself required to disclose
such documents. (234) Yet it might be fortuitous that this party is the one who needs to
obtain the document and comes from a system that does not afford the privilege. That
might not be true equality in terms of the ability to present the case.
Similarly where reasonable expectations of the parties are concerned, would each
party's reasonable expectation be that they have the same protections that they have
domestically, or that the tribunal will equalise treatment, or ignore domestic litigation
rules in pursuit of the truth? Schlabrendorff and Sheppard raise an interesting example
of a US party being asked to disclose a communication with a French in-house lawyer.
(235) Would the US party expect the same protection as at home or should it be expected
to understand the differing position in France? Schlabrendorff and Sheppard suggest that
under such a test, communications which are privileged when made would be expected
to remain privileged and hence privileges recognised by a domestic court will likewise
be recognised by international tribunals. Yet the more the client and counsel are
P 808 experienced in arbitration and understand the differing views about legal privilege,
the less such an expectation holds true. Legitimate expectations may also be
problematic if a party has chosen arbitration in part to get away from domestic
evidentiary norms and biases. To the extent that the nationality of counsel is a relevant
factor in determining expectations, this can be problematic if it encourages parties to
select counsel to promote their privilege entitlements. It is also hard to apply a
reasonable expectation test when parties and counsel come from different legal families.
28
Another reasonable expectation is presumably that parties will be treated in a fair and
reasonable manner. (236) This may however be circular in terms of whether fairness
equates to exact equality of treatment or equates to equal respect for each party's
domestic tradition. Another possibility is that a legitimate expectation of a party is that
by choosing arbitration where broad discretions are granted to tribunals, they have
effectively waived their rights to insist on strict legal privilege, preferring a practical
application of fairness and efficiency tests on a case-by-case basis to a rigid application
of foreign conflict of law rules. Conversely, it could be tenably asserted that certainty and
consistency is at least of equal merit. (237)
The above analysis demonstrates why no single theory is ideal, although the problem is
real and requires a solution. The more reasonable expectation might be that a party
aware of the problem can seek an agreement with the opposing party from the outset.
Agreement can be indirect, through the choice of guidelines or recommended principles.
Absent express agreement, at least having the parties agree to tribunal determinations
would be preferable. Over time, a dominant position is likely to emerge and parties who
are not happy with it can seek agreement to the contrary. The new IBA Rules of Evidence
2010 have more detailed provisions and are at least a starting point for consideration.
These are discussed in section 10.17.9 below.
10.17.8 Waiver
If a conflicts approach is adopted, there may also be arguments as to whether privilege
has been waived by conduct. Such conduct could also be relevant to a broad fairness and
efficiency discretion unconstrained by conflicts approaches. Mandatory laws might even
apply if they purport to bar waiver, which might even mean that under some conflicts
approaches, agreement of the parties could be ignored. The converse situation where
similar issues may arise is where a party has previously conceded that privilege applies
and then tries to take a different approach at a later stage.
Because privilege has classification issues as to substance/procedure, there will be
similar issues where waiver is concerned, although the relevant law of waiver should be
the same as the law of privilege. Where waiver is concerned it is important to understand
P 809 that because different legal families treat it as either a party entitlement or a lawyer's
ethical duty, they differ as to whether and by whom the privilege may be waived. Another
issue is whether inadvertent disclosure will constitute waiver. Where privileged or
confidential documents are inadvertently produced, parties might have a pre-existing
clawback agreement providing for their return and indicating that they may not be relied
upon in the adjudicatory processes. (238)
10.17.9 IBA Rules of Evidence and Privilege

The IBA Rules of Evidence 2010 provide mechanisms for determining questions of
privilege. Article 9.2(b) of the 2010 Rules retains the prime provisions in the 1999 Rules
and indicates that evidence shall be excluded where it is subject to a ‘legal impediment
or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be
applicable…’. When the IBA Rules of Evidence 2010 were developed, leading experts were
surveyed as to whether the rules should provide further guidance, with those surveyed
dividing roughly evenly both for and against. (239) Similarly those surveyed divided
roughly equally on whether a choice of law approach should apply or whether there
should be default rules. (240) The final version is more open-ended in terms of relevant
factors for consideration. Under a new Article 9.3 the tribunal is to consider:
(a) any need to protect the confidentiality of a Document created or statement or oral
communication made in connection with and for the purpose of providing or
obtaining legal advice;
(b) any need to protect the confidentiality of a Document created or statement or oral
communication made in connection with and for the purpose of settlement
negotiations;
(c) the expectations of the Parties and their advisers at the time the legal impediment
or privilege is said to have arisen;
(d) any possible waiver of any applicable legal impediment or privilege by virtue of
consent, earlier disclosure, affirmative use of the Document, statement, oral
communication or advice contained therein, or otherwise; and
(e) the need to maintain fairness and equality as between the Parties, particularly if
they are subject to different legal or ethical rules.
Because the rules speak of material ‘in connection with’ certain processes, it will also
P 810 cover background and internal documents for the purpose of legal advice and
settlement and not simply documents directly presented for those activities. (241) The
Commentary states that ‘the standard to be applied is left to the discretion of the
arbitral tribunal….’ Expectations of the parties and their advisors are to be taken into
account. The key provision is likely to be that of fairness and equality as most
commentators would not wish to see parties subject to differing rules under a conflicts
approach. (242) This criterion also implies that those utilising the IBA Rules are most
unlikely to adopt a pure conflicts approach that would have different rules for each
party. Nevertheless, for reasons articulated above, any alternative conflicts approach is
29
not easy to identify under fairness and equality tests.
The protection can only be relied upon in good faith. Thus a party should not be entitled
to proffer a key document during settlement negotiations simply to afford it protection.
(243) In any event if it is a contemporaneous document it would need to be disclosed.
Carter suggests that the reference to ‘equality and fairness’ may lead to application of
the broadest privilege where the rules applicable to each party differ as this is the
approach that would both provide for equal treatment and give credit to prior
expectations. (244) He also suggests that the rules need to maintain flexibility as parties
may approach privileged claims in differing ways within an arbitration and proper
responses may be needed on a case-by-case basis. (245)
10.17.10 Legal Privilege

General principles discussed above apply to all forms of privilege. This section gives
further attention to legal privilege as it is the single most significant category. Contests as
to legal privilege can combine complex legal questions in terms of applicable law and
coverage of in-house counsel and factual questions in the context of the purpose of the
communication. Where legal privilege is concerned, the rational is that justice is served if
there is an entitlement to seek legal advice knowing that confidences will be maintained.
Absent any privilege, clients might withhold adverse information from their legal advisers
P 811 or not seek advice at all. A related policy justification is that counsel can provide
cautionary advice if the communication is protected. The more that a party is
forthcoming and receives accurate advice, the more likely that settlement will be
achieved and that the transaction costs of formal dispute settlement can be avoided or
at least minimised. Many communications between counsel and client would also
unfairly influence the decision maker if disclosed.
Legal privilege can typically cover pure advice and also communications in the context
of contemplated or actual adjudicatory processes. In the civilian tradition, professional
secrecy is typically considered as a matter of criminal law and professional ethics rather
than a rule of evidence and as such cannot be waived by the client. (246) Civilian
jurisdictions also differ as to whether communications between lawyers are confidential
and whether they may or may not be disclosed to the client. (247) In Akzo Nobel, the ECJ
confirmed confidentiality of communications between counsel and client where the
communications were made for the purposes of the exercise of the client's rights of
defence and emanated from independent lawyers. (248) Confidential communications
between counsel and clients has been considered to be an element to the right to a fair
trial under Article 6 of the 1950 European Convention on Human Rights. (249)
Nevertheless, the principle is not absolute and is subject to proportionality tests as
applied generally under the Convention. (250)
The previous section outlined the relevant provisions of the IBA Rules of Evidence 2010.
ICDR Rules direct a tribunal to take into account ‘applicable principles of legal privilege’.
(251) The 2012 revision of the ICC Rules amended the provision on confidentiality. The
tribunal now has the power to make orders regarding the confidentiality of proceedings
and any other matters in connection with the arbitration. (252) Others, such as the LCIA
Rules simply do not mention privilege issues. While the English Arbitration Act 1996 does
P 812 not expressly address legal privilege, section 43, which empowers the court to support
arbitration through orders to witnesses, provides that a person cannot be compelled to
produce documents ‘which he could not be compelled to produce in legal proceedings’.
The court at least is thus obliged to respect legal privilege rights.
Litigation privilege should apply to communications between a party and its experts. The
same would relate to communications between counsel and witnesses in terms of
developing written statements and clarifying potential evidence. Privilege may also
apply to non-lawyers giving similar kinds of advice in relation to intellectual property or
customs law, although this might not be so under some applicable laws. While much of
the debate is about whether privilege should ever apply and if so by what law, there are
also important factual questions as it is not every communication between a client and
counsel that is protected. There is a need to consider the nature of the advice or work
and analyse this in the context of the policy underlying the notion of privilege.
10.17.11 Privilege and In-House Counsel

Civilian and common law jurisdictions treat in-house counsel differently when
considering questions of privilege. The common law will tend to allow communications
with in-house counsel to be covered by legal professional privilege. Civilian legal systems
are less inclined to do so although there is no common approach with France, Italy,
Sweden and Switzerland denying such privileges while these are allowed in Belgium,
Denmark and Spain with the position in Germany somewhat unsettled. (253) The ECJ has
tended to deny protection to in-house counsel. (254) The policy concern with in-house
counsel is that if the lawyer is subject to directions from senior corporate officers, there is
no need to be concerned that a lack of privilege will preclude the party seeking legal
advice. Furthermore, there is a greater risk that parties and their in-house advisers could
manipulate privilege entitlements to conceal key information. (255) Even in the common
law, the activities of in-house counsel may not actually be legal advice but may simply
be a normal executive function which would not be subject to the privilege. (256)
30
P 813
There might be problems if there is a disparity between the demands of an arbitral
tribunal and the ethical duties of counsel vis-à-vis allegedly privileged communications.
One variation is whether in-house counsel are expected to be members of a local Bar.
(257) This varies between jurisdictions. However, it would be rare that a particular
counsel’s national Bar sought to prevent members from responding to directions of
properly constituted foreign adjudicatory bodies. (258) While there is as yet no emerging
international standard, Meyer suggests that the more expansive standard of protection of
the common law is more appropriate for arbitral purposes. (259)
10.17.12 Settlement Discussions and ‘Without Prejudice’ Communications

It is generally accepted that without prejudice or otherwise confidential comments
during settlement negotiations are not admissible before a tribunal. (260) Privilege as to
settlement also applies to discussions prior to commencement of an action. (261) If these
are tendered in any event, it may compromise the tribunal and in extreme
circumstances, lead to a need for reconstitution. (262) For example, a generous
settlement offer may simply be motivated by a desire to extricate oneself from a dispute
rather than being based on a belief as to liability. While that is so, it is preferable for
counsel to clearly and expressly indicate the confidentiality of such communications
rather than simply use terms of art such as ‘without prejudice’ which may not be
understood by lawyers from some jurisdictions.
The situation will be different if there is a disputed assertion that the matter was settled,
in which case that alleged agreement goes to arbitral jurisdiction and needs to be
P 814 determined by the tribunal. The situation might be more complicated if one party is
negotiating with a non-party, perhaps because of an indemnity or a separate cause of
action. Such a situation may arise in a construction dispute where there is a
subcontractor or a negligence claim where there is an insurance underwriter.
It is generally accepted that privilege applies to communications in mediation,
conciliation and similar ADR processes. (263)
10.17.13 Self-incrimination
It is not clear whether the privilege against self-incrimination applies in arbitration. (264)
10.17.14 Resolving Contested Privilege Claims

A tribunal has a difficulty in deciding on admissibility without examining the material.
Yet if it does so and upholds the privilege, it cannot easily ignore what it has seen. Hunter
and Travaini see the advantage in the appointment of a neutral expert to consider
privilege/confidentiality arguments. (265) This is discussed further in section 11.8.1 below
as to the use of experts for document production challenges.
10.17.15 Annulment and Enforcement

Whichever view is taken by a tribunal on privilege issues, there can be potential
enforcement challenges, although these should not be upheld in the vast majority of
cases. If a tribunal does not apply a privilege operating at the place of enforcement, the
enforcement court might consider this to be a breach of public policy. Although legal
privilege should only be considered in this way if it is truly a transnational public policy,
a failure to allow for equality of arms might be a violation of international procedural
public policy. (266) Conversely, if an application for document production is refused on
P 815 the grounds of privilege, the applicant might argue that it has been denied a full
opportunity to present its case. (267) Brower and Sharpe suggest that a court is more
likely to intervene where privileges are not recognised. (268)
10.18 Inspections, Site Visits and Sampling

In some disputes it may be appropriate or even necessary for the tribunal to inspect a
place or some machinery or traded goods. A tribunal might also need to inspect a system
or process where its performance is in issue or is important background.
In some cases, without such an inspection, a tribunal will simply be unable to make the
requisite determination. In other cases, a tribunal may best understand conflicting
evidence when it can view the relevant subject matter. An example would be a
construction dispute where there is a value in understanding the layout and the elements
that the witnesses will address. In some cases a tribunal may wish to undertake
experiments in aid of their determination. For example, a claim that garments are faulty
because the dye leaches on washing, could be tested via experimentation. Site
inspections might also be conducted by experts for similar reasons.
If sampling is to occur, there needs to be proper attention to the degree of sampling that
would be statistically significant. It would be best if the parties agreed to an appropriate
amount. In case of disagreement, a tribunal might even wish to obtain the advice of a
statistics expert as to an appropriate sample size.
Site inspections are expressly referred to in many statutes and rules, including the
31
English Arbitration Act 1996 (269) LCIA Rules (270) and UNCITRAL Rules 2010. (271) The
ICSID Arbitration Rules also allow the tribunal to visit any place connected with the
dispute. (272) Nevertheless, most statutes and rules make no express reference but would
treat this as implied within general powers. Article 7 of the IBA Rules of Evidence 2010
provides a discretion for the tribunal at its own motion or on the request of a party to
allow for such inspections, subject to the provisions of Article 9.2 dealing with grounds for
P 816 refusal. Alternatives to site visits might include computer simulations, models and
video and photo material. In all cases the tribunal needs to be clear in its own mind as to
the distinction between evidence and mere assistance to better understand other
evidentiary material.
There are also a number of important protocols to employ when engaging in such
inspections. If an inspection is to occur, it is sensible to make a procedural direction to
this effect that also gives an indication as to how it is to be organised, who is to be
present and what will occur during the process. Any site inspection should be undertaken
in the presence of representatives of each party. (273) A tribunal might be empowered to
engage in a site inspection without any representatives of the parties, but only where this
seems reasonable. The process of inspection should also be distinguished from the
process of oral testimony. On a site visit, it will typically be the case that employees or
other representatives of one of the parties will assist the tribunal in its inspection. It is
important to clarify that any communications at such time are not to be taken as
evidence. If those employees are to give evidence they should do so as witnesses in the
usual manner. The UNCITRAL Notes make clear that explanations given at a site visit are
not evidence in the proceedings. (274) Arbitrators should not normally question people as
to matters of contested evidence during a site inspection in ways where those answers
would be relevant to their determination. Instead the tribunal will merely ask questions
that aid it in the logistics and effectiveness of its physical inspection. Similarly, the
parties' representatives are not there to make submissions or present evidence on that
occasion. It has been suggested that best practice is to direct that there be no transcript
and that what is said should not form part of the record, otherwise the inspection might
become overly formalised. (275)
10.19 Evidence from Non-Parties

At times a party may wish to rely on documents in the possession of persons who are not
parties to the arbitration agreement or rely on their oral testimony. As a general rule, the
tribunal has no power of compulsion over such persons. In some countries, an arbitrator
is given power in the arbitration statute to summon persons and to demand document
production. (276) In some jurisdictions, an application may be made to a court for such
purposes. (277) Articles 3.9 and 4.9 of the IBA Rules of Evidence 2010 deal with requests to
a tribunal to take whatever steps are legally available to obtain requested documents or
summon witnesses respectively. In some cases, a tribunal will simply authorise a party to
P 817 itself approach courts for their assistance. It is not clear whether Article 3.9 of the IBA
Rules of Evidence should be interpreted so that it is mandatory to seek leave of the
tribunal before seeking court assistance. Different views have been taken in Methanex.
(278) If the proper view was that permission needed to be sought, there would then be a
problem if evidence was obtained without permission and then tendered to the tribunal.
There are no clear rules on how to treat improperly obtained evidence, with conflicting
policy arguments from due process, fairness and relevance perspectives.
If a third party appears as a witness he or she may be asked to produce relevant
documents, although again compulsion is not generally possible. If the party gives oral
evidence and refuses to produce documents thought to be in its possession, adverse
inferences might well be drawn, but only where reasonable to do so. (279) A person who
has not consented to arbitrate may have many reasons for not rendering assistance. The
same is the case with refusals to answer questions, although if a person is there anyway
and simply does not answer a key question, there might be less alternative hypotheses to
an adverse inference. If third-party evidence has been called for, their attitude to a
voluntary request may also impact upon the tribunal's decision as to whether to hold
evidentiary hearings in non-seat jurisdictions.
10.19.1 Unsolicited Evidence from Non-parties

A growing tendency in investment arbitration cases is for non-governmental organisations
to seek hearing rights, purport to present amicus curiae briefs and submit relevant
evidence. This section deals with submission of evidence. The following section deals
with amicus curiae briefs where arguments will be presented. Subject to party autonomy
and duties of confidentiality, a tribunal's broad discretionary powers would allow for this
in appropriate circumstances. A tribunal would need to be circumspect, however, as the
party in whose favour the evidence is presented could easily have presented it directly.
Hence the attempted submission by a third party will commonly be contrary to party
intent which should be paramount.
There are also a range of practical problems with such material. On what basis can a
tribunal resolve to be selective with such material given duties of efficiency? Should such
material be provided to the parties with an opportunity to respond and who should
ultimately pay for that part of the process where a global costs order is not thought
32
appropriate? Should opportunities be provided to other potentially interested parties to
present similar material? Should a tribunal make decisions as to admissibility before or
P 818
after considering the evidence sought to be submitted? (280) Because of these
concerns, the first thing a tribunal should do when faced with unsolicited evidence is to
seek the guidance of the parties as to their preferred process.
10.19.2 Amicus Curiae Briefs

Amicus curiae were considered in section 7.16 as to the basis of any appearance right.
This section gives further consideration to evidentiary issues. Some authors consider that
it is part of the inherent jurisdiction of any international tribunal to accept amicus curiae
briefs. (281) Whether this should apply to international commercial or investment
arbitration depends in part on the view one takes as to its essential nature. Once again
the more it is consent based, the less one would justify the rights of audience of third
parties. Duties of confidentiality also impact upon the ability of amicus curiae to be
aware of the key issues that would need to be addressed in their submissions. In areas
where amicus curiae briefs might be beneficial, an arbitral tribunal can approach the
issue by expressly calling for relevant evidence from the parties. In most cases where
amicus curiae briefs are involved, these are not truly provided as friends of the court but
are effectively seeking to bolster the position of one of the parties. Where the court
wishes to have its own independent material, it may appoint its own expert.
Some investment arbitration tribunals have accepted such submissions. The NAFTA
tribunal in Methanex accepted amicus submissions. (282) Two other similar cases rejected
applications. NAFTA tribunals have relied on broad powers under the UNCITRAL Rules.
The Statement of the NAFTA Free Trade Commission on Non-Disputing Party Participation
also expressly concludes that tribunals have the power to accept and consider amicus
curiae briefs, although this is seen as recommendatory rather than a binding ruling. ICSID
tribunals have relied on Article 44 of the ICSID Convention. In addition, Rule 37(2) of the
ICSID Arbitration Rules now expressly indicates that tribunals have the power to accept
and consider written submissions from non-disputants. The 2004 US Model BIT and recent
P 819 US Free Trade Agreements typically include express authority to accept and consider
amicus submissions. (283) Article 15 of the Rules of Procedure and Evidence of the Iran-US
Claims Tribunal also allows for the receipt of third-party statements. While each regime
asserts that the power exists, each sees it as a discretionary matter for the tribunal.
NAFTA, ICSID and the WTO all call for applications for leave to file briefs so that the
tribunal can first consider whether to accept them. On the one hand, a two-stage process
may minimise the amount of material ultimately to be considered. On the other hand, it
is difficult to determine the value of a potential brief until its contents are known. One
important factor taken into account by NAFTA and ICSID tribunals is whether there is a
significant public interest component in the particular dispute. This is a difficult test to
employ as all investment disputes dealing with a State as a party have a public interest
element for that reason alone. The more the investment centres on key services and
facilities, the more a tribunal is likely to see a particularly significant public interest. A
tribunal will also consider the suitability of the person seeking to tender amicus briefs. In
Aguas Provinciates, the tribunal indicated that ‘(i)t is not enough for a non-governmental
organisation to justify an amicus submission on general grounds that it represents civil
society or that it is devoted to humanitarian concerns. It must show the Tribunal in
specific terms how its background, experience, expertise, or special perspectives will
assist the Tribunal in the particular case…’. (284) The tribunal also wished to judge the
independence of the petitioner.
In considering whether to accept amicus submissions, there is also the question of timing
and delay and the added costs to the other parties of reviewing those submissions. A
tribunal would have no cost powers against the amicus if the ultimate submission wasted
people's time. In considering third-party participation, a tribunal is also concerned with
its general duty to promote arbitration and respect for that form of dispute settlement.
Where investment arbitration is concerned, it is impossible to ignore criticisms from
academia and non-governmental organisations as to lack of transparency with respect to
matters of broad public interest. That does not mean that the criticisms need to be
accepted. Nevertheless, the ground-swell of criticism may have some influence on
decisions by certain governments to leave the investment treaty system. It is in that
context that investment treaty arbitrators may give thought to broader concerns as to the
sanctity of the system when making individual procedural rulings.
P 820
In addition to third-party rights to make submissions and present their own documents,
there is the related question as to whether they should be given access to documents in
the arbitration so that they can make meaningful submissions on key matters. This
question could arise more frequently in investment arbitration. Basic principles of
arbitration, consent and confidentiality would not allow for this, although some regimes
offer more in the way of public access to documents. This is the case with NAFTA Chapter
11. (285) Third parties would not have the right to bring witnesses or to cross-examine
witnesses of the parties. By definition, they are not needed as advocates for a position
being argued from the evidence before the tribunal. They are there to provide further
assistance that is not being provided by either of the parties.
33
10.20 Overseas Evidence
In some cases a party might request the tribunal to take evidence from persons in
countries outside the Seat who are not willing to attend voluntarily and to consider
documents in the position of third parties who again choose not to submit them
voluntarily for use in the hearing. Generally speaking, arbitral tribunals will not have
powers to subpoena documents or persons, although there are exceptions in some
jurisdictions. The Hague Convention on the Taking of Evidence Abroad in Civil or
Commercial Matters (286) does not apply to arbitral proceedings, although Redfern and
Hunter note that many signatory States do lend judicial assistance to arbitral tribunals
with a Seat in another contracting State. (287)
Redfern and Hunter suggest that the most common way of compelling the production of
such evidence is indirectly, through the ability to draw adverse inferences from
unexcused failure to produce requested evidence. (288) However, this would be
problematic in many situations. The adverse inference ultimately has to be against the
claims of a party. Absent any controlling power of the tribunal or a party to the
proceedings over the third party, the latter has a natural excuse. The non-party could
argue that it has never consented to giving an arbitrator a right to pass judgment on its
basis for refusal. Adverse inferences will be much easier where it is clear that a party to
the proceedings has power over the person whose evidence or documents are sought and
chooses not to exercise it.
P 821
10.21 Preserving Evidence

A tribunal or court might be asked to make orders preserving evidence where it is thought
that there is a reasonable apprehension that it may be destroyed or removed from
jurisdictional control. Preserving evidence can also include keeping equipment in its
existing pre-repaired state so experts and the tribunal can view it in assessing a damages
claim. (289) This is discussed further in section 8.2.10.1 dealing with provisional measures.
10.22 Timing of Evidential Material

10.22.1 General Principles
Access to information is crucial in adjudications that are resolving factual disputes. (290)
There are important questions of timing in the exercise of a tribunal's evidentiary
discretions. The first question is what evidence should be provided concurrently with
arbitration requests and answers and subsequent written submissions. This relates to the
obligation on each party to produce the documents on which it intends to rely. The next
timing issue is when document production should be ordered as a result of inter-party
requests if that is to occur. Related to that, is the power of a tribunal to direct production
where a party does not voluntarily wish to do so. As noted, this book uses the phrase
document production in relation to document requests between the parties and tribunal
rulings in that regard, rather than the common law term of discovery. It refers to
document presentation to deal with unilateral submission of documents by the parties. A
further timing issue relates to the amount of time that should be allocated between
production of witness statements and documentary evidence and the hearing itself, so
that the opposing party can take instructions and seek to mount a contrary factual
argument. Finally, there is a question as to whether new evidence can be submitted after
deadlines set down by the tribunal.
From a policy perspective, it is even wrong to consider the timing of evidence in the
context of these forms of document presentation alone. Domestic legal systems include
an array of mechanisms whereby one party might seek to elicit facts and concessions
from its opponent and which impact upon the need for and utility of documents as
evidence and affect timing of other stages. This may include interrogatories, depositions,
P 822 requests for admissions of fact (with potential cost implications for refusals), physical
inspections and examination of witnesses. (291) Only the latter two are typically utilised
in international arbitration. These timing issues can be determined by agreement of the
parties or failing that, by tribunal discretion, in each case subject to mandatory norms.
Mandatory norms requiring due notice of the matters to address should apply to the
evidence on which the party intends to rely. (292)
There is also a question as to whether written submissions should be concurrent or
sequential in the context of document presentation. This poses challenges in terms of the
need to provide equal treatment. Where evidence is to be attached to submissions,
sequential submissions mean that the responding party is on notice as to the body of
evidence it is seeking to refute. Rightly or wrongly, a claimant might argue that this
favours respondent, although it would be rare for such a challenge to be legitimately
upheld as a respondent is entitled to first understand the case against it before
responding.
10.22.2 Deadlines for Evidentiary Submissions and Documentary Production

A tribunal will normally impose a ‘cut-off date after which further evidentiary material
34
may not be submitted. (293) Nevertheless, a tribunal needs to retain a discretion in
appropriate circumstances to allow new evidence. The principles are considered in the
following section.
10.22.3 Admissibility of New Evidence

There are two senses in which we can speak of new evidence. The first relates to evidence
that was not in existence when evidence was required to be produced. The second
relates to evidence that was always in existence but which was not produced when an
opportunity had previously been provided. In each case the tribunal must consider
whether to grant leave for the evidence to be presented. (294)
There are a number of potentially conflicting principles to consider. A tribunal must
P 823 always be prepared to consider the reasons why an extension is sought. Many rules
require ‘exceptional circumstances’. (295) A tribunal might consider the fault, if any, of
the party seeking to submit late evidence. A party, who for whatever reason has only
gathered previously existing evidence after deadlines have passed, might typically seek
to rely on its right to an adequate or full opportunity to present its case. The tribunal is
not bound to accede to such requests as the mandatory obligation is only to give each an
‘opportunity’. If the previous procedural deadlines were adequate and a party simply did
not comply, it cannot say that it did not have an adequate opportunity. However, a
tribunal is not bound to reject such an application as other considerations are relevant. It
might allow the evidence if there is minimal inconvenience to the other party and the
tribunal, or if the inconvenience can be compensated with an appropriate costs award. A
tribunal will be more inclined to do so if the new evidence is crucial and fills a gap in the
prior evidentiary record. Conversely, in many cases the inconvenience might be
unacceptable, for example, if the other party would have insufficient time to prepare and
respond to the new material or if the final award would be unduly delayed in order to
give them sufficient time. Another relevant factor is whether the material sought to be
produced should have been presented in any event by the other party. For example, one
party might gain last minute access to documents which should have been disclosed by
its opponent as relevant to the claim or in response to an order for document production.
If it was wrongly not produced, the other party could have made an application for an
order that full production take place, so producing the newly acquired document itself
seems similar in substance.
In Protiva, the Iran–US Claims Tribunal considered ‘fundamental requirements of equality
between, and fairness to, the Parties, and the possible prejudice to either Party’. (296) It
considered that ‘the orderly conduct of the proceedings also requires that time limits be
established and enforced.’ (297) The tribunal considered that if there is no acceptable
justification for lateness, it can be rejected. (298) It allowed some documents where there
would not have been prejudice to the other party and another document where it would
have been in the possession of the other party in any event. (299)
In some cases a tribunal might need to consider whether the new material could give rise
to a new request for arbitration if its admissibility is rejected. That might be a factor in
favour of accepting it on efficiency grounds. Conversely, some might take the view that
P 824 the evidence can be adequately presented in the new claim. Finally, in some cases
new material can be rejected simply on the basis that it is irrelevant to the issues in
dispute. An example would be an investment arbitration case challenging a bureaucratic
determination on the basis that it did not constitute fair and equitable treatment under
treaty norms. The bureaucrat should not be able to rely on subsequent evidence to justify
a decision that when taken, was inappropriate. Similarly, a decision to terminate a
construction contract in the face of building inadequacies needs to be analysed in the
context of the factors relied upon for termination and not subsequent defects that have
come to light during preparation for the arbitration proceedings.
It is also worth remembering that due process challenges can arise either way depending
on whether new evidence is accepted or rejected. Nevertheless, a party would find it
hard to challenge an award on the basis that the tribunal improperly allowed late
submissions unless it did so without giving it adequate warning and an appropriate
opportunity to respond. The most important thing is for the tribunal to set deadlines with
enough advance warning to the parties, and ideally with their agreement, so that no due
process arguments can be raised if new material is rejected. It is also appropriate to
indicate the consequences of failure to meet deadlines at the outset and whether
applications for late submissions will even be entertained. This is sensibly recommended
in both the UNCITRAL Notes and ICC, Techniques for Controlling Time and Cost in
Arbitration. (300)
P 824
References
35
1) Redfern and Hunter suggest that perhaps 60% to 70% of cases turn on facts rather
than the application of principles of law. Nigel Blackaby et al., Redfern and Hunter
on International Arbitration, 5th edn (Oxford: Oxford University Press, 2009), 384. The
authors suggest that in the vast majority of other cases, the outcome is based on a
combination of factual and legal issues. Hence there are only a very small number
of cases where factual determinations are not required.
2) Matti Kurkela & Hannes Snellman, Due Process in International Commercial
Arbitration (New York: Oceana Publications, 2005), 35.
3) Durward V. Sandifer, Evidence before International Tribunals, rev. edn
(Charlottesville: University Press of Virginia, 1975), 1.
4) Van Vechten Veeder, ‘Evidence: The Practitioner in International Commercial
Arbitration’, Forum du Droit International 1, no. 4 (1999): 228.
5) Nietzsche observed of historical analysis that ‘there are no facts, only
interpretations’. See Friedrich Nietzsche, The Will to Power, trans. Walter Kaufmann
& R.J. Hollingdale (New York: Random House, 1967), §481. Where legal adjudication is
concerned, the added challenge is that it is a battle between contested
interpretations. It has even been asked whether lawyers are really interested in the
truth or only what can be proven? Arthur L. Marriott, ‘Evidence in International
Arbitration’, Arbitration International 5, no. 3 (1989): 280.
6) For a discussion of these differences, see Yves Derains, ‘La pratique de
l'administration de la preuve dans l'arbitrage commercial international’, Revue de
l'Arbitrage (2004): 781–802.
7) Claude Reymond, ‘Civil Law and Common Law Procedures: Which Is the More
Inquisitorial? A Civil Lawyer's Response’, Arbitration International 5, no. 4 (1989): 358.
8) Peter Hafter, ‘The Provisions on the Discovery of Internal Documents in the IB A
Rules of 1999’, in Global Reflections on International Law, Commerce and Dispute
Resolution: Liber Amicorum in Honour of Robert Briner, ed. Gerald Aksen et al. (Paris:
ICC Publishing, 2005), 355.
9) More meaningful differences may arise between those who might infer intent from
documentation and from hypotheses as to likely behaviour as opposed to choosing
between the more truthful of conflicting witnesses.
10) See, e.g., the Woolf reforms in England: Lord Woolf, ‘Access to Justice, Interim Report
to the Lord Chancellor on the Civil Justice System in England and Wales' (1995); Lord
Woolf, ‘Access to Justice, Final Report to the Lord Chancellor on the Civil Justice
System in England and Wales' (1996).
11) DIC of Delaware, Inc. & Underhill of Delaware, Inc. v. Tehran Redevelopment Corp. &
the Government of the Islamic Republic of Iran, in Albert Jan van den Berg (ed.),
Yearbook of Commercial Arbitration Volume XI (The Hague: Kluwer Law International,
1986), 336.
12) It has been suggested that evidence, in the sense of actual facts pertaining to such
substantive law requirements, is substantive in nature, while evidence in the sense
of the dynamic process by which facts are presented and verified are more
procedural: Salvatore Satta, Diritto Processuale Civile (Padova: Cedam, 1981), 188–
189 as described in Mauro Rubino-Sammartano, International Arbitration: Law and
Practice, 2nd edn (The Hague: Kluwer Law International, 2001), 657.
13) See, e.g., the UNCITRAL Model Law on International Commercial Arbitration 1985 Art.
28.
14) The nature of an award is discussed in section 16.2.
15) Article 27(4) of the UNCITRAL Rules 2010 is to similar effect, as is Art. 20.6 of the ICDR
Arbitration Rules 2009 Art. 9.1 of the IBA Rules on the Taking of Evidence in
International Arbitration 2010 and s. 1042(4) German Code of Civil Procedure.
16) IBA Rules on the Taking of Evidence in International Arbitration 2010 Art. 1.5.
17) See LCIA Rules Art. 22.1(f).
18) See, e.g., UNCITRAL Rules 2010 Art. 27.3; ICC Rules 2012 Art. 25(5); ICDR Rules Art. 19.3;
LCIA Rules Art. 22.1(c)–(e); HKIAC Rules Art. 23.3; SCC Rules Art. 26(3); Swiss Rules 2012
Art. 24.3; IBA Rules on the Taking of Evidence in International Arbitration 2010 Arts
3.9 and 4.9–10; CIETAC Rules Art. 41.1.
19) Judgment of 18 November 1960, Case Concerning the Arbitral Award Made by the King
of Spain on 23 December 1906 (Honduras v. Nicaragua), [1960] ICJ Reports, 215–216.
20) Similarly, see the ICC Rules 2012 Art. 19; UNCITRAL Rules 2010 Art. 17.1; LCIA Rules Art.
14.2; ICDR Rules Art. 16; HKIAC Rules Art. 14; SIAC Rules Art. 16.1; SCC Rules Art. 19(1);
Swiss Rules 2012 Art. 15.1; ACICA Rules Art. 17.1.
21) Peter Hafter, ‘The Provisions on the Discovery of Internal Documents in the IBA Rules
of 1999’, in Global Reflections on International Law, Commerce and Dispute
ICC Publishing, 2005), 355; Hilmar Raeschke-Kessler, ‘The Production of Documents in
International Arbitration – A Commentary on Art. 3 of the New IBA Rules of Evidence’,
Arbitration International 18, no. 4 (2002): 428.
22) See UNCITRAL Model Law Art. 18.
23) UNCITRAL Rules 2010 Art. 17(1).
24) Dadras International & Per-Am Construction Corporation v the Islamic Republic of
Iran & Tehran Redevelopment Company, in Albert Jan van den Berg (ed.), Yearbook of
Commercial Arbitration Volume XXII (The Hague: Kluwer Law International, 1997),
para. 61.
36
25) David D. Caron, Lee Caplan & Matti Pellonpää, The UNCITRAL Arbitration Rules: A
Commentary (Oxford: Oxford University Press, 2006), 621.
26) For example, the ICDR Guidelines for Arbitrators Concerning Exchanges of
Information (2008) para. 1(b) allow the parties to provide the tribunal with their
views on the appropriate level of information exchange but indicate that ‘the
tribunal retains final authority…’. Express agreement to these guidelines should
make it harder to mount a challenge to any tribunal determination.
27) This was discussed in sections 2.10.3, 2.12, 6.2.4 and 6.2.5.
28) Gary B. Born, International Commercial Arbitration (The Hague, Kluwer Law
International, 2009), 1009–1010.
29) See V.V. Veeder, ‘The Lawyer's Duty to Arbitrate in Good Faith’, Arbitration
International 18, no. 4 (2002): 431.
30) While not directly relevant to investment arbitration, Art. 36(2)(c) of the Statute of
the International Court of Justice allows parties to consent to the Court determining
the existence of any fact which, if established, would constitute a breach of an
international obligation. Art. 48 allows for arrangements as to the taking of
evidence. Art. 49 allows the Court to ask parties to produce evidence although it
cannot compel them to do so; Art. 50 allows the Court to establish enquiries or call
for expert opinions; Art. 43(5) allows for witnesses and experts to be heard; while Art.
52 allows the Court to refuse untimely evidence.
31) Charles N. Brower, ‘The Anatomy of Fact-Finding before International Tribunals: An
Analysis and a Proposal Concerning the Evaluation of Evidence’, in Fact-Finding
before International Tribunals: Eleventh Sokol Colloquium, ed. Richard B. Lillich (New
York: Transnational Publishers, 1992), 150.
33) Ibid., 8.
34) For example, a case on expropriation might look at approaches to valuation by the
ICJ. See Factory at Chorzow (Germany v. Poland) (1928) PCD (ser. A) No. 17 (September
13), paras 127–143.
35) IAIGC v. DAII, Paris Court of Appeal, 23 October 1997, (1982) XXIII YB Com Arb 644, 651.
36) A zero sum game is where any advantage to one party must come with an equal
disadvantage to the other.
37) Penny Martin et al., ‘2010 International Arbitration Survey: Choices in International
Arbitration', <www.arbitrationonline.org/research/2010/index.html>, 2010.
38) See section 1.5.
40) Emmanuel Gaillard & John Savage (eds), Fouchard Gaillard Goldman on International
Commercial Arbitration (The Hague: Kluwer Law International, 1999), 690, para. 1260.
41) Yves Dezalay & Bryant G. Garth, Dealing in Virtue: International Commercial
Arbitration and the Construction of a Transnational Legal Order (Chicago: The
University of Chicago Press, 1996), 51–57.
42) See, e.g., Pieter Sanders (ed.), Comparative Arbitration Practice and Public Policy in
Arbitration, ICCA Congress Series No. 3 (The Hague: Kluwer International, 1987), 19–22.
43) Howard Holtzmann, ‘Fact-Finding by the Iran-United States Claims Tribunal’, in
Fact-Finding before International Tribunals: Eleventh Sokol Colloquium, ed. Richard
B. Lillich (New York: Transnational Publishers, 1992), 101; Michael Strauss, ‘The
Practice of the Iran–United States Claims Tribunal in Receiving Evidence from
Parties and from Experts', Journal of International Arbitration 3, no. 3 (1986): 58.
44) See further sections 1.2.13, 3.10 and 6.5.
45) First developed in 1983, revised in 1999 and again in 2010 and referred to hereafter
as the IBA Rules of Evidence 2010.
46) The revised Rules no longer refer to ‘commercial’ as this has become a term of art in
contradistinction to investment arbitration and the intent was to provide rules for
both forms of disputes.
47) ACICA Rules Art. 27.2.
48) ‘Techniques for Controlling Time and Costs in Arbitration: Report from the ICC
Commission on Arbitration’, ICC Publication No. 843, ICC International Court of
Arbitration Bulletin 18, no. 1 (2007): para. 54.
49) IBA Rules of Evidence 2010 Art. 1.2.
50) A recommended text is contained in para. 4 of the Foreword to the IBA Rules of
Evidence 2010.
51) IBA Rules of Evidence Review Sub-Committee, ‘Commentary on the Revised Text of
the 2010 IBA Rules on the Taking of Evidence in International Arbitration’, 5,
<www.ibanet.org/Document/Default.aspx?DocumentUid=DD240932-0E08-40D4-
9866-309A635487C0>, 25 March 2011. The commentary on Art. 1 states that in the
event of conflicts or silence in the rules, the tribunal shall try to harmonise the rules
or interpret them based on their general principles, such as those set forth in the
Preamble, to the greatest extent possible.
52) Article 2.1; this brings para. 3 of the Preamble to the 1999 version of the IBA Rules
into a direct obligation. A similar sentiment is again expressed in the Preamble to
the 2010 version.
53) IBA Rules of Evidence 2010 Art. 2.1 and 2.2.
54) Article 9.7.
37
55) Julian D.M. Lew, Loukas A. Mistelis & Stefan M. Kröll, Comparative International
Commercial Arbitration (The Hague: Kluwer Law International, 2003), 560.
56) Michael Bühler & Carroll Dorgan, ‘Witness Testimony Pursuant to the 1999 IBA Rules
of Evidence in International Commercial Arbitration – Novel or Tested Standards?’,
Journal of International Arbitration 17, no. 1 (2000): 6.
57) Bernard Hanotiau, ‘Document Production in International Arbitration: A Tentative
Definition of “Best Practices’”, in ICC International Court of Arbitration Bulletin, 2006
Special Supplement: Document Production in International Arbitration (Paris: ICC
Publishing, 2006), 114.
58) Jan Paulsson, ‘Cross-Enrichment of Public and Private Law Dispute Resolution
Mechanisms in the International Arena’, Journal of International Arbitration 9, no. 1
(1992): 63.
59) Simon Greenberg, Christopher Kee & J. Romesh Weeramantry, International
Commercial Arbitration: An Asia-Pacific Perspective (Cambridge: Cambridge
University Press, 2011), 312; footnote 34 gives details of a survey conducted by the
IBA Rules of Evidence Sub-Committee which noted 18% of participants choosing the
rules in most or all cases in their arbitration agreement and 31% choosing them in
some instances. Where the rules were not already selected by the parties, these
were included in terms of reference or subsequent directions by 43% in most cases
and by 42% in some cases. See also the reference to this survey in Georg von
Segesser, ‘The IBA Rules on the Taking of Evidence in International Arbitration:
Revised Version, Adopted by the International Bar Association on 29 May 2010’, ASA
Bulletin 28, no. 4 (2010): 736.
60) See Laurence Shore, ‘Three Evidentiary Problems in International Arbitration’,
SchiedsVZ (2004): 76–80 (although this is a reference to the 1999 Rules). For a civilian
critic see Klaus Lionnet, ‘Once Again: Is Discovery of Documents Appropriate in
International Arbitration?’, in Global Reflections on International Law, Commerce and
Dispute Resolution –Liber Amicorum in Honour of Robert Briner, ed. Gerald Aksen &
Robert Georg Briner (Paris: ICC Publishing, 2005), 499.
61) V.V. Veeder, ‘Evidence: The Practitioner in International Commercial Arbitration’,
International Law FORUM Du Droit International 1, no. 4 (1999): 229.
62) UNCITRAL, ‘UNCITRAL Notes on Organizing Arbitral Proceedings’,
<www.uncitral.org/pdf/english/texts/arbitration/arb-notes/arb-notes-e.pdf>, 1996.
See further section 6.3.1.
63) UNCITRAL, ‘Draft Guidelines for Preparatory Conferences in Arbitral Proceedings’
<http://daccess-dds-ny.un.org/doc/UNDOC/GEN/V94/219/31/IMG/V9421931.pdf?
OpenElement>, 1994.
64) ICC, ‘Techniques for Controlling Time and Costs in Arbitration’,
<www.iccwbo.org/uploaded-Files/TimeCost_E.pdf>, 2007. See further section 6.5.2.
65) ICDR, ‘ICDR Guidelines for Arbitrators Concerning Exchanges of Information’,
<www.adr.org/si.asp?id=5288>, May 2008.
66) CPR, ‘CPR Protocol on Disclosure of Documents and Presentation of Witnesses in
Commercial Arbitration’,
<http://cpradr.Org/Resources/ALLCPRArticles/tabid/265/ID/614/CPR-Protocol-on-
Disclosure-of-Documents-...>, 2009.
67) Doug Jones, ‘Party Appointed Expert Witnesses in International Arbitration: A
Protocol at Last’, Arbitration International 24, no. 1 (2008):141.
68) In this book, document presentation is used to describe an obligation on a party to
tender the material on which it intends to rely. Document production is used to refer
to the right to call for documents from the opposing party (described as discovery in
common law systems).
69) Shabtai Rosenne & Yaël Ronen, The Law and Practice of the International Court,
1920–2005, 4th edn (Leiden: Martinus Nijhoff Publishers, 2006), 1040–1042; Corfu
Channel Case (United Kingdom v Alabania) [1949] ICJ Rep 4, 17–18; Awards of 27
October 1989 and 30 June 1990, Albert Jan van den Berg (ed.), Yearbook of
Commercial Arbitration Volume XIX (The Hague: Kluwer Law International, 1994), 24,
para. 3; Antoine Biloune and Marine Drive Complex Ltd v. Ghana Investment Centre
and the Government of Ghana (1990) 95 ILR 184.
70) Sigvard Jarvin, ‘The Sources and Limits of the Arbitrator's Powers’, Arbitration
International 2, no. 2 (1986): 151.
71) Here there is a question as to whether the tribunal itself can identify a legal basis
even different to that presented by a party under the principle iura novit curia. This
is discussed further in section 13.19.
38
72) Much confusion occurs because different terms are used to display differing
concepts or are arguably used interchangeably by different authors and judges. For
example, Alan Redfern speaks of the onus of proof on the party making an
allegation, with the burden of proof being the evidential burden shifting from one
party to another: Alan Redfern et al., ‘The Standards and Burden of Proof in
International Arbitration’, Arbitration International 10, no. 3 (1994): 319. Andreas
Reiner discusses the burden of allegation in the same article. See Alan Redfern et
al., ‘The Standards and Burden of Proof in International Arbitration’, Arbitration
International 10, no. 3 (1994): 328. Reiner distinguishes between notions of legal
burden and evidential burden at 329. Kurkela and Snellman suggest the burden of
proof can shift when the respondent is the only one that can be expected to have
the relevant evidence: Matti Kurkela & Hannes Snellman, Due Process in
International Commercial Arbitration (New York: Oceana Publications, 2005), 41.
Sharpe speaks of the ‘burden of production or onus proponendi’ and also speaks of
the burden shifting: Jeremy K. Sharpe, ‘Drawing Adverse Inferences from the Non-
production of Evidence’, Arbitration International 22, no. 4 (2006): 552. Von Mehren
speaks of the burden of going forward and the burden of persuasion: Robert B. von
Mehren, ‘Burden of Proof in International Arbitration’, in Planning Efficient
Arbitration Proceedings: The Law Applicable in International Arbitration, ICCA Congress
Series No. 7 (Vienna 1994), ed. Albert Jan van den Berg (The Hague: Kluwer Law
International, 1996), 124. Here the phrases ‘burden of going forward’ and ‘burden of
persuasion’ are used as synonyms for onus of proof.
73) Some tribunals also unfortunately speak of the burden of proof as shifting once the
claimant has provided sufficient evidence. See, e.g., Reza Said Malek v the
Government of the Islamic Republic of Iran, in Yearbook of Commercial Arbitration
Volume XVIII, ed. Albert Jan van den Berg (The Hague: Kluwer Law International,
1993), 289. See also Edgar Protiva & Eric Protiva v. the Government of the Islamic
Republic of Iran, in Yearbook Commercial Arbitration Volume XXI, ed. Albert Jan van
den Berg (The Hague: Kluwer Law International, 1996), para. 61. Another troubling
observation in a claim for damages for non-performance was in ICC Case No. 1434,
Journal du Droit International (1976): 982, where the tribunal opined that the
claimant ‘has the burden to prove the existence of the duty of the other party to
perform and its extent, while the defendant must prove that such a duty has been
discharged’. It must surely be the case that the claimant must attest to non-
performance, although the respondent would succeed if it shows that this is not the
case. The problem was perhaps alleviated because the tribunal also commented
that the parties have a duty to cooperate in good faith in the taking of evidence,
hence showing that it would not resolve the matter via technical burdens of proof.
74) Some speak of burden of proceeding instead of onus but this is also likely to
confuse.
75) See also HKIAC Rules Art. 23.1; Swiss Rules 2012 Art. 24.1; CIETAC Rules Art. 39.1; ICDR
Rules Art. 19.1; ACICA Rules Art. 27.1.
76) Poudret and Besson support the view that burden of proof and presumptions which
reverse the burden of proof in special cases are determined under the lex causae:
Jean-François Poudret & Sebastien Besson, Comparative Law of International
Arbitration, 2nd edn (London: Sweet & Maxwell, 2007), 550. Arbitral awards adopting
this view and cited in Poudret and Besson include ICC Case No. 5294 of 22 February
1988, Albert Jan van den Berg (ed.), Yearbook of Commercial Arbitration Volume XIV,
(The Hague: Kluwer Law International, 1989), 145. Again, it is undesirable to speak of
burdens shifting as opposed to onus.
77) Convention on the Law Applicable to Contractual Obligations (Rome Convention)
1980 Art. 14(1).
78) See Alan Redfern et al., ‘The Standards and Burden of Proof in International
Arbitration’, Arbitration International 10, no. 3 (1994): 331–332.
79) Gary B. Born, International Commercial Arbitration (The Hague: Kluwer Law
International, 2009), 1858.
80) Ibid., 1858.
81) Kurkela & Hannes Snellman, Due Process in International Commercial Arbitration
(New York: Oceana Publications, 2005), 41.
Commercial Arbitration (The Hague: Kluwer Law International, 2003), 561. This
concept is also known as L'intime conviction dujuge, il libero convincimento del
giudice, die richterliche uberzeugeng.
83) See the conflicting survey views in Michael J. Bond, ‘The Standard of Proof in
International Commercial Arbitration’, Arbitration 77, no. 3 (2011) 304.
84) See Alan Redfern et al., ‘The Standards and Burden of Proof in International
Arbitration’, Arbitration International 10, no. 3 (1994): 335.
85) Ibid., 326.
86) George M. von Mehren & Claudia T. Salomon, ‘Submitting Evidence in an
International Arbitration: The Common Lawyer's Guide’, Journal of International
Arbitration 20, no. 3 (2003): 291.
87) Partial Award Prisoners Of War –Eritrea's Claim 17, decision of 1 July 2003, Reports of
International Arbitral Awards, Volume XXVI, 41.
39
Commentary, (Oxford: Oxford University Press, 2006), 572.
90) Mojtaba Kazazi, Burden of Proof and Related Issues: A Study on Evidence before
International Tribunals (The Hague: Kluwer Law International, 1996), 377.
91) R.D. Friedman, ‘Economic Analysis of Evidentiary Law: An Underused Tool, an
Underplowed Field’, Cardozo Law Review 19 (1998): 1535–1536.
92) Robert B. von Mehren, ‘Burden of Proof in International Arbitration’, in Planning
Efficient Arbitration Proceedings: The Law Applicable in International Arbitration, ICCA
Congress Series No. 7 (Vienna 1994), ed. Albert Jan van den Berg (The Hague: Kluwer
Law International, 1996), 128.
93) Where fraud is concerned ICC Award 6401 considered that this ‘must be proved by
clear and convincing evidence’: ICC Case No. 6401, Westinghouse International
Projects Company v. National Power Corporation, Mealey's International Arbitration
Report 7’, no. 1 (1992): 17–18.
94) Oil Field of Texas, Inc. v. the Government of the Islamic Republic of Iran & National
Iranian Oil Company, in Albert Jan van den Berg (ed.), Yearbook of Commercial
Arbitration Volume XII (The Hague: Kluwer Law International, 1987), 288.
95) Dadras International & Per-Am Construction Corporation v the Islamic Republic of
Iran & Tehran Redevelopment Company, in Albert Jan van den Berg (ed.), Yearbook of
Commercial Arbitration Volume XXII (The Hague: Kluwer Law International, 1997),
para. 124. See also Final Award in Case No. 6497 of 1994, in Albert Jan van den Berg
(ed.), Yearbook of Commercial Arbitration Volume XXIVa (The Hague: Kluwer Law
96) K. Mills, ‘Corruption and Other Illegality in the Formation and Performance of
Contracts and in the Conduct of Arbitration Relating Thereto’, in International
Commercial Arbitration: Important Contemporary Questions, ICCA Congress Series No.
11, ed. Albert Jan van den Berg (The Hague: Kluwer Law International, 2003), 295.
97) Final Award in ICC Case No. 8891, Journal de Droit International (2000): 1076, and
cited in Anne Véronique Schlaepfer & Philippe Bartsch, ‘A Few Reflections on the
Assessment of Evidence by International Arbitrators’, International Business Law
Journal no. 3 (2010): 223.
Commentary (Oxford: Oxford University Press, 2006), 570.
International, 2009), 1902, 1858.
100) Howard M. Holtzmann, ‘Can the Plausibility Standard of Proof Developed in Mass
Claims Arbitrations Also Be Useful in Commercial Cases’, in Global Reflections on
International Law, Commerce and Dispute Resolution: Liber Amicorum in Honour of
Robert Briner, ed. Gerald Aksen et al. (Paris: ICC Publishing, 2005), 378.
Arbitration 20, no. 3 (2003): 291.
102) Alan Redfern et al., ‘The Standards and Burden of Proof in International Arbitration’,
103) See section 13.14 in relation to the general rights and duties of an amiable
compositeur. At this stage it should be noted that there are differences in view as to
whether such a person can ignore legal rules and decide purely on questions of
fairness or whether legal principles should first be considered and then mitigated
where appropriate.
104) Alan Redfern et al., ‘The Standards and Burden of Proof in International Arbitration’,
Arbitration International 10, no. 3 (1994): 324–325.
105) This covers situations where the victim cannot directly attest to how they were
injured but the circumstances make it sufficient to conclude that they could not
have been injured without negligence by the person responsible.
106) ICC Case No. 6653 of 26 March 1993 (Steel bars case), cited in Mauro Rubino-
Sammartano, International Arbitration: Law and Practice, 2nd edn (The Hague: Kluwer
109) See, e.g., Case T-13/99, Pfizer Animal Health SA v. Council of European Union [2002]
ECR II-3307 paras 168–169; Hauptzollamt München-Mitte v. Technische Universitäs
München [1991] ECR 1–5469.
110) See, e.g., Edgar Protiva & Eric Protiva v. the Government of the Islamic Republic of
Iran, in Albert Jan van den Berg (ed.), Yearbook of Commercial Arbitration Volume XXI
(The Hague: Kluwer Law International, 1996), para. 68. In that case, the tribunal
concluded that ‘the Respondent has not introduced any evidence adequate to
rebut the substance of (Claimant's witnesses) letters’.
111) Howard M. Holtzmann, ‘Procedural Aspects: Balancing the Need for Certainty and
Flexibility in International Arbitration Procedures’, in International Arbitration in the
Twenty-First Century: Towards ‘Judicialization’ and Uniformity?, ed. Richard B. Lillich
& Charles N. Brower (New York: Transnational Publishers, 1994), 21.
40
112) Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals,
3rd edn (Cambridge: Cambridge University Press, 2006), 34.
113) Corfu Channel case, United Kingdom of Great Britain v. People's Republic of Albania
(Merits), [1949] ICJ Rep 4, 18.
114) Charles N. Brower, ‘Evidence before International Tribunals: The Need for Some
Standard Rules’, International Lawyer 28, no. 1 (1994): 54.
115) ICC Award No. 8694 (1996) American Company v. Belgian Company and observations
by Yves Derains, Journal du Droit International (1997): 1056. For another example of
adverse inferences in an ICC award, see Yves Derains, ‘La pratique de
l'administration de la preuve dans l'arbitrage commercial international’, Revue de
l'Arbitrage (2004): 792. Adverse inferences were drawn by a majority of the tribunal in
ICSID Case No. AB/AF/99/1, Award and Dissenting Opinion of 16 December 2002,
Marvin Roy Feldman Karpa v. United Mexican States, 7 ICSID Reports 407, 412–413, in
relation to proof of a breach of national treatment where the applicants contended
that Mexican companies were given rebates of excise taxes in a discriminatory way
over the applicant. Other examples of adverse inferences include INA Corporation v.
the Government of the Islamic Republic of Iran, in Albert Jan van den Berg (ed.),
Yearbook of Commercial Arbitration Volume XI (The Hague: Kluwer Law International,
1986), 312–324; Computer Sciences Corp. v. the Government of the Islamic Republic of
Iran, Award No. 221-65-1, 16 April 1986, 10 Iran–United States Claims Tribunal
Reports 269, 302 (1987); Sedco, Inc. v. Islamic Republic of Iran, Award No. 309–129-3, 7
July 1987, 15 Iran–United States Claims Tribunal Reports 23, 55 (1987). See also
Ultrasystems Inc. v. Islamic Republic of Iran, Concurring Opinion of R Mosk in Award
No. 27-84-3, 4 March 1983, 2 Iran-United States Claims Tribunal Reports 114, 115
(1983); Edgar Protiva & Eric Protiva v. the Government of the Islamic Republic of Iran,
in Albert Jan van den Berg (ed.), Yearbook Commercial Arbitration Volume XXI (The
Hague: Kluwer Law International 1996), para. 68.
116) Judgment of 28 March 2007, Swiss Federal Supreme Court ASA Bulletin 25, no. 3
(2007): 610.
117) Ali Z. Marossi, ‘The Necessity for Discovery of Evidence in the Fact-Finding Process of
International Tribunals’, Journal of International Arbitration 26, no. 4 (2009): 529.
118) Ashford considers this permissible. See Peter Ashford, ‘Document Discovery and
International Commercial Arbitration’, American Review of International Arbitration
17, (2006): 101.
120) Pierre-Yves Tschanz, ‘Advocacy in International Commercial Arbitration:
Switzerland’, in The Art of Advocacy in International Arbitration, ed. R. Doak Bishop
(New York: Juris Publishing, 2004), 231.
121) Thomas H. Webster, ‘Obtaining Documents from Adverse Parties in International
Arbitration', Arbitration International 17, no. 1 (2001): 51.
123) Arguments as to waiver would not help as they do not support a logical inference
that the document is in fact adverse.
124) Peter Ashford, ‘Document Discovery and International Commercial Arbitration’,
American Review of International Arbitration 17 (2006): 101.
125) John Ragosta, ‘Unmasking the WTO – Access to the DSB System: Can the WTO DSB
Live up to the Moniker World Trade Court’, Law and Policy in International Business
31, no. 3 (2000): 762.
126) Arthur J Fritz & Co. v. Sherkate Tavonie Sherkathaye Sakhtemanie (Co-operative
Society of Construction Companies) 22 Iran–US Claims Tribunal Reports 170 (1989),
180.
127) Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium
v. Spain) ICJ Reports (1970), 215, para. 97.
128) In the WTO context, the Appellate Body, where it thought it might have drawn an
adverse inference if confronting the same issue as the panel, nevertheless
concluded that the panel did not err in law in refusing to do so. Canada–Measures
Affecting the Export of Civilian Aircraft Canada-Aircraft WTO Doc WT/DS70/AB/R,
(1999), Report of the Appellate Body, paras 199 and 205.
Commentary, (Oxford: Oxford University Press, 2006), 578–579. For a contrary
approach see Dongwoo Mann and Hummel Co. Ltd v. Mann and Hummel GmbH [2008]
SGHC 67, para. 70.
130) Edgar Protiva & Eric Protiva v. the Government of the Islamic Republic of Iran, in
Albert Jan van den Berg (ed.), Yearbook of Commercial Arbitration Volume XXI (The
Hague: Kluwer Law International 1996), para. 68.
131) See, e.g., UNCITRAL Rules 2010 Art. 27.3; ICC Rules 2012 Art. 25(5); ICDR Rules Art. 19.3;
LCIA Rules Art. 22.1(c)-(e); HKIAC Rules Art. 23.3; SCC Rules Art. 26(3); Swiss Rules 2012
Art. 24.3; IBA Rules on the Taking of Evidence in International Arbitration 2010 Arts
3.9 and 4.9–10; CIETAC Rules Art. 41.
132) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA)
(Merits) judgment, [1986] ICJ Reports, 40–41.
133) Martin Hunter, ‘The Procedural Powers of Arbitrators under the English 1996 Act’,
41
134) Eric Bardier de la Serre & Anne-Lise Sibony, ‘Expert Evidence before the EC Courts’,
Common Market Law Review 45, no. 4 (2008): 959.
135) Mauro Rubino-Sammartano, International Arbitration: Law and Practice, 2nd edn (The
Hague: Kluwer Law International, 2001), 704 citing Owen v. Nicholl [1948] 1 All ER 707.
136) Charles N. Brower, ‘The Anatomy of Fact-Finding before International Tribunals: An
Analysis and a Proposal Concerning the Evaluation of Evidence’, in Fact-Finding
before International Tribunals: Eleventh Sokol Colloquium, ed. Richard B. Lillich (New
York: Transnational Publishers, 1992), 150–151; Behring Int'l v. Islamic Republic of Iran
(1991) 27 Iran-United States Claims Tribunal Reports 218, 234. See also Edgar Protiva
& Eric Protiva v. the Government of the Islamic Republic of Iran, in Albert Jan van den
Berg (ed.), Yearbook of Commercial Arbitration Volume XXI (The Hague: Kluwer Law
International 1996), para. 72.
137) Peter Hafter, ‘The Provisions on the Discovery of Internal Documents in the IBA Rules
of 1999’, in Global Reflections on International Law, Commerce and Dispute
ICC Publishing, 2005), 361.
138) The example also shows why document production is such an important element in
legal adjudicatory design and why there is such a need to find a harmonised
approach to this element in international arbitration, given the disparity of
approaches between legal families at the domestic level. Document production is
discussed further in section 11.6 below.
139) Avco Corp v. Iran Aircraft Industries et al., in Albert Jan van den Berg (ed.), Yearbook
of Commercial Arbitration Volume XIV (The Hague: Kluwer Law International 1989),
377–382.
140) Ibid., 381.
141) Ibid., 379. See also Charles N. Brower, ‘Evidence before International Tribunals: The
Need for Some Standard Rules’, International Lawyer 28, no. 1 (1994): 53–54.
142) Iran Aircraft Industries et al. v. Avco Corporation, in Albert Jan van den Berg (ed.),
Yearbook of Commercial Arbitration Volume XVIII (The Hague: Kluwer Law
International 1993), 596–606.
143) Jean-François Poudret & Sébastien Besson, Comparative Law of International
Arbitration, 2nd edn (London: Sweet & Maxwell, 2007), 563.
144) Martin Hunter, ‘The Procedural Powers of Arbitrators under the English 1996 Act’,
International, 2009), 1902. This approach is commonly utilised in WTO dispute
settlement.
147) Ibid., 690. See further section 13.19 on this issue.
148) Payment in Gold of Brazilian Federal Loans Contracted in France (France v. Brazil),
1929 PCIJ. (ser. A) No. 21 (12 July), 124, para. 81.
149) Vienna Convention on the Law of Treaties, United Nations, Treaty Series, vol. 1155,
331, Art. 32.
150) For example, Marc Blessing advocates a determination of what is subjectively fair
and objectively reasonable in interpreting arbitration agreements: Dr Marc Blessing,
‘The Law Applicable to the Arbitration Clause’, in Improving the Efficiency of
Arbitration and Awards: 40 Years of Application of the New York Convention, ICCA
Congress Series No. 9, ed. Albert Jan van den Berg (The Hague: Kluwer Law
International, 1999), 171; Marc Blessing ‘Choice of Substantive Law in International
Arbitration’, Journal of International Arbitration 14, no. 2 (1997): 42.
151) Klaus Peter Berger, ‘Evidentiary Privileges under the Revised IBA Rules on the Taking
of Evidence in International Arbitration’, International Arbitration Law Review 13, no.
5 (2010): 174.
152) See, e.g., Art. 10 UNCITRAL Model Law on International Commercial Conciliation; s. 10
DIS Mediation Rules; SM-12 ICDR International Mediation Rules; s. 6, CEDR Code of
Conduct for Mediators and Other Third Party Neutrals. See also Mobil Oil Iran v.
Islamic Republic of Iran Iran–US Claims Tribunal Reports 16, 55. See also ICC Award
6653 of 1993, Journal du Droit International (1993): 1040 as cited in Jason Fry, ‘Without
Prejudice and Confidential Communications in International Arbitration’,
International Arbitration Review 1, no. 6 (1998): 209, 212.
153) See section 10.17 below dealing with privilege, including settlement discussions.
154) This should be resolved by the tribunal and not by a court. In the Singaporean case
of Doshion Ltd v. Sembawang Engineers and Constructors Pte Ltd [2011] SGHC 46, an
application to the court on the basis that the tribunal was functus officio was rightly
rejected. Such an assertion would also be contrary to the notion that a tribunal can
render a settlement agreement as an award.
5 (2010): 171, 175.
156) See Esso Australia Resources Ltd v. Plowman [1995] 183 CLR 10. For variations in the
US, Sweden and England, see the discussion in Peter Ashford, ‘Document Discovery
and International Commercial Arbitration', American Review of International
Arbitration 17, (2006): 128.
42
157) The ICC Court's Internal Rules also indicate that the Court's work is also confidential:
ICC Rules of Arbitration 2012, Appendix II, Art. 1.
158) One could question whether this only deals with materials or also includes
information.
159) Richard Garnett et al., A Practical Guide to International Commercial Arbitration (New
York: Oceana Publications Inc., 2000), 14.
160) Res judicata is discussed in section 8.10.
162) ILA International Commercial Arbitration Committee, ‘Interim Report on Res
Judicata and Arbitration’, given at the ILA Seventy-First Conference (Berlin, 2004),
14, <www.ila-hq.org/download.cfm/docid/446043C4-9770-434D-
AD7DD42F7E8E81C6>, 25 March 2011; ILA International Commercial Arbitration
Committee, ‘Final Report on Lis Pendens and Arbitration’, adopted at the ILA
Seventy-Second Conference (Toronto, 2006), 36, para. 56, <www.ila-
hq.org/download.cfm/docid/C5443B2B-406F-4A42-9BE49EE93FB92A4C>, 25 March
2011.
International, 2009), 2886–2887.
164) For a detailed analysis of the preclusive effects of international arbitral awards see
Gary B. Born, International Commercial Arbitration (The Hague: Kluwer Law
International, 2009), 2887-2970.
165) ICSID Arbitration Rules Art. 42(3); UNCITRAL Rules 2010 Art. 30.1(b); Swiss Rules 2012
Art. 28; LCIA Rules Art. 15.8; HKIAC Rules Art. 26; CIETAC Rules Art. 14.4.
166) For a requirement as to rehearing, see Cia de Navegacion Omsil v. Hugo Neu Corp 359
F.Supp. 898 (SDNY 1973).
168) UNCITRAL Rules 2010 Art. 27(4); HKIAC Rules Art. 23.10; Swiss Rules 2012 Art. 24.2; SCC
Rules Art. 26(1); IBA Rules on the Taking of Evidence in International Arbitration 2010
Art. 9.1.
169) Panel Report, European Communities – Anti-dumping duties on Imports of Cotton-
Type Bed Linen from India, WT/DS141/R (30 October 2000), para. 6.33. Similar
problems arise when an arbitrator has previously undertaken a mediation function:
Jacob Rosoff, ‘Hybrid Efficiency in Arbitration: Waiving Potential Conflicts for Dual
Role Arbitrators in Med-Arb and Arb-Med Proceedings’, Journal of International
Arbitration 26, no. 1 (2009): 97.
170) Nigel Blackaby et al., Redfern and Hunter on International Arbitration, 5th edn
(Oxford: Oxford University Press, 2009), 387.
Standard Rules’, International Lawyer 28, no. 1 (1994): 48.
Arbitration 20, no. 3 (2003): 290.
173) Corfu Channel case, United Kingdom of Great Britain v People's Republic of Albania
(Merits), ICJ Reports (1949), 4, 18.
174) Ibid., 4, 59.
175) See American Steamship Company v. Thai Transportation Enterprise, in Pieter Sanders
(ed.), Yearbook of Commercial Arbitration Volume VIII (The Hague: Kluwer Law
International, 1983), 168 (allowing hearsay evidence).
176) US Federal Rules of Evidence (2011), Rule 801(c).
177) For admissibility of hearsay evidence in England see Civil Evidence Act 1995 (UK) s.
1(1).
178) Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. USA)
(Merits) [1986] ICJ Reports 14, 42 para. 68.
179) Shabtai Rosenne, The Law and Practice of the International Court, 1920–1996, 3rd edn
(Leiden: Martinus Nijhoff Publishers, 1997), 1090. An American court refused to
interfere with an arbitral award based on hearsay evidence in Petroleum Separating
Company v. Inter-American Refining Corporation 296 F. 2d 124 (2d Cir 1961).
Standard Rules’, International Lawyer 28, no. 1 (1994): 52. Hearsay evidence was also
admitted in American Steamship Company v. Thai Transportation Enterprise, in Pieter
Sanders (ed.), Yearbook of Commercial Arbitration Volume VIII (The Hague: Kluwer
181) Geroge H. Aldrich, The Jurisprudence of the Iran–United States Claims Tribunal: An
Analysis of the Decisions of the Tribunal (Oxford: Oxford University Press, 1996), 352.
182) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA)
(Merits) [1986] ICJ Reports 14, 40 para. 63.
183) A related relevant factor is the vested interest of the speaker in terms of the
outcome of the dispute: Michael Bühler & Carroll Dorgan, ‘Witness Testimony
Pursuant to the 1999 IBA Rules of Evidence in International Commercial Arbitration –
Novel or Tested Standards?’, Journal of International Arbitration 17, no. 1 (2000): 28.
184) Civil Evidence Act 1995 (UK) s. 5.
43
185) S.I. Strong & James J. Dries, ‘Witness Statements under the IBA Rules of Evidence:
What to Do about Hearsay?’, Arbitration International 21, no. 3 (2005): 307.
186) Ibid., 315–316. Other court assistance may be resorted to.
188) See Marc Blessing, ‘The Law Applicable to the Arbitration Clause’, in Improving the
Efficiency of Arbitration and Awards: 40 Years of Application of the New York
Convention, ICCA Congress Series No. 9 (1998 Paris), ed. Albert Jan van den Berg (The
Hague: Kluwer Law International, 1999).
189) See Case No. 122, Judgment of 12 July 1991, Southern District of New York, Oriental
Commercial & Shipping Co Ltd., et al, v. Rosseel, NV, in Albert Jan van den Berg (ed.),
Yearbook Commercial Arbitration Volume XVII (The Hague: Kluwer Law International,
1992), 696–704 (applying the parol evidence rule to documents of parties that led to
consent orders in domestic court proceedings).
191) Ibid., 560.
International, 2009), 1860; Pierre-Yves Tschanz, ‘Advocacy in International
Commercial Arbitration: Switzerland’, in The Art of Advocacy in International
Arbitration, ed. R. Doak Bishop (New York: Juris Publishing, 2004), 218.
193) W. Michael Reisman & Eric E. Freedman, ‘The Plaintiff’s Dilemma: Illegally Obtained
Evidence and Admissibility in International Adjudication’, American Journal of
International Law 76 (1982): 737; Mojtaba Kazazi, Burden of Proof and Related Issues: A
Study on Evidence before International Tribunals (The Hague: Kluwer Law
194) Corfu Channel case, United Kingdom of Great Britain v People's Republic of Albania
(Merits), ICJ Reports (1949) 4, 34–36.
195) See, e.g., Final award (under NAFTA Chapter 11 and the UNCITRAL Arbitration Rules)
of 3 August 2005, Methanex Corporation v. United States of America, Part II, Chp 1, 26,
para. 54.
196) IBA Rules on the Taking of Evidence in International Arbitration 2010 Art. 9.2(e).
197) Esso Australia Resources Ltd v Plowman [1995] 183 CLR 10.
198) Charles N. Brower & Jeremy K. Sharpe, ‘Determining the Extent of Discovery and
Dealing with Requests for Discovery: Perspectives from the Common Law’, in Leading
Arbitrators' Guide to International Arbitration, ed. Lawrence W. Newman & Richard D.
Hill, 2nd edn (New York: Juris Publishing, Inc., 2008), 328.
199) D v. National Society for the Prevention of Cruelty to Children [1978] AC 171, 218 per
Lord Diplock.
200) I am indebted to Tony Canham for this observation.
201) Science Research Council v. Nasse [1980] AC 1028, 1065.
Commercial Arbitration (The Hague: Kluwer Law International, 1999), 1265; Jean-
François Poudret & Sébastien Besson, Comparative Law of International Arbitration,
2nd edn (London: Sweet & Maxwell, 2007), 557.
203) Resort should also be made to the ILA International Commercial Arbitration
Committee report on Confidentiality in International Commercial Arbitration.
Available at <http://port.academia.edu/MunirManiruzzaman/Talks/46253/ILA_-
_ICA_COMMITTEE_REPORT_ THE_HAGUE_2010>.
204) Martin Hunter & Gregory Travaini, ‘Electronically Stored Information and Privilege in
International Arbitration’, in Liber Amicorum Bernardo Cremades, ed. Miguel Á.
Fernández-Ballesteros & David Arias (Madrid: La Ley, 2010), 615.
205) Richard M. Mosk & Tom Ginsburg, ‘Evidentiary Privileges in International
Arbitrations’, International and Comparative Law Quarterly 50, no. 2 (2001): 345.
206) Fabian von Schlabrendorff & Audley Sheppard, ‘Conflict of Legal Privileges in
International Arbitration: An Attempt to Find a Holistic Solution’, in Global
Reflections on International Law, Commerce and Dispute Resolution: Liber Amicorum
in Honour of Robert Briner, ed. Gerald Aksen et al. (Paris: ICC Publishing, 2005), 745.
Arbitrators' Guide to International Arbitration, ed. Lawrence W Newman & Richard D.
Hill, 2nd edn (New York: Juris Publishing, Inc., 2008), 378–381.
208) Georgios Petrochilos, Procedural Law in International Arbitration (Oxford: Oxford
University Press, 2004), 221, n. 244.
209) IBA Working Party, ‘Commentary on the New IBA Rules of Evidence in International
Commercial Arbitration’, Business Law International 14, no. 2 (2000): 33.
210) Olaf Meyer, ‘Time to Take a Closer Look: Privilege in International Arbitration’,
Journal of International Arbitration 24, no. 4 (2007): 367–370.
211) Ibid., 367.
44
212) Three Rivers District Council & Ordv. Governor & Company of the Bank of England (No
10) [2004] 3 WLR 1274 (HL), para. 26. Schlabrendorff and Sheppard also see legal
privileges as having both procedural and substantive characters: Fabian von
Schlabrendorff & Audley Sheppard, ‘Conflict of Legal Privileges in International
Arbitration: An Attempt to Find a Holistic Solution’, in Global Reflections on
International Law, Commerce and Dispute Resolution: Liber Amicorum in Honour of
Robert Briner, ed. Gerald Aksen et al. (Paris: ICC Publishing, 2005), 764.
213) See, e.g., UNCITRAL Model Law Art. 28.
214) Michelle Sindler & Tina Wustemann, ‘Privilege Across Borders in Arbitration: Multi-
jurisdictional Nightmare or a Storm in a Teacup?’, ASA Bulletin 23, no. 4 (2005): 619.
215) Georgios Petrochilos, Procedural Law in International Arbitration (Oxford: Oxford
University Press, 2004), 221.
5 (2010): 173.
219) Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened
for signature 18 March 1970, Art. 11.
220) EC Regulation on Judicial Co-operation (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 [2001] OJ L 174, Art. 14, 17.
for signature 18 March 1970, Art. 11; EC Regulation on Judicial Co-operation (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 [2001] OJ L
174, Art. 14; Inter-American Convention on the Taking of Evidence Abroad, opened for
signature 30 January 1975, 1438 UNTS 385, Art. 12 (entered into force 16 January 1976).
223) Gabrielle Kaufmann-Kohler & Philippe Bärtsch, ‘Discovery in International
Arbitration: How Much is Too Much?’, SchiedsVZ 2 (2004): 19.
224) See, e.g., US Restatement (Second) Conflict of Laws (American Law Institute, 1971), §
139.
225) Meyer also strongly advocates the consideration of existing international standards
when making these determinations: Olaf Meyer, ‘Time to Take a Closer Look:
Privilege in International Arbitration’, Journal of International Arbitration 24, no. 4
(2007). In appropriate cases such standards might be drawn from the laws and
practices of UN covenants and conventions on human rights, the European
Convention on Human Rights and the Code of Conduct for Lawyers in the European
Union.
in Honour of Robert Briner, ed. Gerald Aksen et al. (Paris: ICC Publishing, 2005), 768-
769. A similar view is presented by Klaus Peter Berger, ‘Evidentiary Privileges under
the Revised IBA Rules on the Taking of Evidence in International Arbitration’,
International Arbitration Law Review 13, no. 5 (2010): 177.
227) International Institute for Conflict Prevention and Resolution, ‘CPR Protocol on
Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration’
(New York: International Institute for Conflict Prevention and Resolution), para. 1(b);
International Centre for Dispute Resolution, ICDR Guidelines for Arbitrators
Concerning Exchanges of Information’, para. 7.
in Honour of Robert Briner, ed. Gerald Aksen et al. (Paris: ICC Publishing, 2005), 772–
773.
5 (2010): 177.
There might also be gaming behaviour with a most favoured privilege approach
where a group of companies is involved where a claimant might leave out a
common law subsidiary simply to tactically reduce the most favourable privilege.
45
232) An ICC Tribunal considered that the question of whether certain diaries should be
excluded was a matter within its general discretion and not subject to any national
rules of evidence. See ICC Case No. 7626 of 1995, in Albert Jan van den Berg (ed.),
Yearbook of Commercial Arbitration Volume XXII (The Hague: Kluwer Law
233) The European Court of Human Rights has considered this in the context of ‘equality
of arms’. See, e.g., Dombo Beheer BV v. Netherlands, Application No. 14448/88, Case
No. 37/1992/382/460, Judgment of 27 October 1993 (Merits and Just Satisfaction),
ECHR Series A, Volume 274; (1994) 18 EHRR 213.
234) Hilmar Raeschke-Kessler, ‘The Production of Documents in International Arbitration
– A Commentary on Art. 3 of the New IBA Rules of Evidence’, Arbitration International
18, no. 4 (2002): 428.
236) Ibid., 766.
237) Ibid., 766.
238) Lukas F. Wyss, ‘Trends in Documentary Evidence and Consequences for Pre-
arbitration Document Management’, International Arbitration Law Review 13, no. 3
(2010): 124, n. 156.
239) Otto L.O. de Witt Wijnen, ‘Collection of Evidence in International Arbitration’, in Liber
Amicorum Bernardo Cremades, ed. M. Á. Fernández-Ballesteros & David Arias
(Madrid: La Ley, 2010), 357.
240) Ibid.
5 (2010): 175.
242) IBA Working Party & IBA Rules of Evidence Review Sub-Committee, ‘Commentary on
the Revised Text of the 2010 IBA Rules on the Taking of Evidence in International
Arbitration’, 25. This follows on from the IBA Working Party’s commentary in relation
to a broad entitlement under the 1999 Rules to exclude documents due to
considerations of fairness or equality. It used as an example documents privileged
in one party's legal system but not the other's. The commentary suggests that the
tribunal may exclude production of the technically non-privileged documents on
this basis.
5 (2010): 171, 175.
244) James H. Carter, ‘Privilege Gets a New Framework’, International Arbitration Law
Review 13, no. 5 (2010): 179.
245) Ibid.
Fernández-Ballesteros & David Arias (Madrid: La Ley, 2010), 615; Klaus Peter Berger,
‘Evidentiary Privileges under the Revised IBA Rules on the Taking of Evidence in
International Arbitration’, International Arbitration Law Review 13, no. 5 (2010): 173.
248) ECJ Case No. C-550/07 P of 14 September 2010, Akzo Nobel Chemicals Limited and
Akcros Chemicals Limited v. Commission of the European Communities, paras 40–44.
249) A submission to this effect was made but not ruled upon in Campbell v. UK,
Application no. 13590/88, Judgment of 25 March 1992 (Merits and Just Satisfaction),
Series A, Volume 233, para. 46; (1992) 15 EHRR 137, para. 46.
251) ICDR Rules Art. 20.6.
252) ICC Rules 2012 Art. 22(3). For the old rule, see ICC Rules 1998 Art. 20(7).
5 (2010): 174.
254) Case 155/79, AM&S Europe Ltd v. Commission of European Communities, [1982] ECR
1575; Case T-30/89, Judgment of 12 December 1991, Hilti AG v. Commission of the
European Communities [1991] ECR 11-1439; See Joined Cases T-125/2003 & T253/2003,
Judgment of the Court of First Instance (First Chamber) of 17 September 2007, Akzo
Nobel Chemicals Ltd & Akcros Chemicals Ltd v. Commission of the European
Communities. Judgment of the Grand Chamber, 14 September 2010.
256) Balabel v. Air India [1988] Ch 317.
46
257) This is the norm in common law countries. In-house counsel are also admitted to the
Bar in Belgium, Denmark, The Netherlands, Germany and Spain: Martin Hunter &
Gregory Travaini, ‘Electronically Stored Information and Privilege in International
Arbitration’, in Liber Amicorum Bernardo Cremades, ed. Miguel. Á. Fernàndez-
Ballesteros & David Arias (Madrid: La Ley, 2010), 619.
259) Ibid.
260) The theoretical position is in fact more complex as common law sees this as a
question of admissibility, while the civilian perspective sees it as a question of
professional secrecy, in some cases allowing adjudicators to hear evidence but
attach whatever weight is considered fair. See Jason Fry, ‘Without Prejudice and
Confidential Communications in International Arbitration (When Does Procedural
Flexibility Erode Public Policy?)’, International Arbitration Law Review 1, no. 6 (1998):
209. Fry argues persuasively against too ready acceptance of such material and
makes the key point that the parties should clarify the position by agreement at the
outset.
261) Bradford & Bingley PLC v. Rashid [2006] 1 WLR 2066 at 2091.
262) If that was the case, an aggrieved party might even consider arguing that the
tendering was in breach of an implied good faith term of the arbitration agreement
giving rise to damages, although such action might not be easy to maintain.
5 (2010): 171, 174. See section 10.10 above dealing with evidence from prior ADR
processes.
264) Dolling Baker v. Merrett [1990] 1 WLR 1205 and see further Peter Ashford, ‘Document
Discovery and International Commercial Arbitration’, American Review of
International Arbitration 17 (2006): 123–124.
266) Ibid., 768.
Journal of International Arbitration 24, no. 4 (2007): 366; Fabian von Schlabrendorff &
Audley Sheppard, ‘Conflict of Legal Privileges in International Arbitration: An
Attempt to Find a Holistic Solution’, in Global Reflections on International Law,
Commerce and Dispute Resolution: Liber Amicorum in Honour of Robert Briner, ed.
Gerald Aksen et al. (Paris: ICC Publishing, 2005), 767.
Arbitrators’ Guide to International Arbitration, ed. Lawrence W. Newman & Richard D.
Hill, 2nd edn (New York: Juris Publishing, Inc., 2008), 326 citing Richard M. Mosk &
Tom Ginsburg, ‘Evidentiary Privileges in International Arbitrations’, International
and Comparative Law Quarterly 50, no. 2 (2001): 376.
269) Sections 38(4) and 44(2)(c).
270) Article 21.
271) Article 18.2.
272) ICSID Arbitration Rules Arts 34(2)(b) and 37(1).
273) This is now expressly provided in Art. 7 of the IBA Rules on the Taking of Evidence in
International Arbitration (2010).
274) UNCITRAL Notes on Organising Arbitral Proceedings (1996), para. 58.
276) See, e.g., the US Federal Arbitration Act, §7.
277) English Arbitration Act 1996 (UK) s. 43.
278) Final Award, Pt II, Ch G para. 21, Methanex unreported 3 August 2005
NAFTA/UNCITRAL available at
<http://ita.law.uvic.ca/documents/MethanexFinalAward.pdf> and Caratube
International Oil Co. v. Republic of Kazakhstan (10-0285) (V.D.D.C. 11 August 2010).
280) These concerns were raised in the WTO context in Donald M. McRae, ‘The WTO in
International Law: Tradition Continued or New Frontier?’, Journal of International
Economic Law 3, no. 1 (2000): 34.
281) Chester Brown, A Common Law of International Adjudication (Oxford: Oxford
University Press, 2007), 76; United States –Import Prohibition of Certain Shrimp and
Shrimp Products WTO Doc. WT/DS58/AB/R (1998), Report of the Appellate Body,
paras 99–110 (although the Appellate Body's approach was based in part on a broad
reading of principles in the Dispute Settlement Understanding).
282) Decision on Petitions from Third Persons to Intervene as 'Amicus curiae' (under
NAFTA Chapter 11 and the UNCITRAL Arbitration Rules), 15 January 2001, Methanex
Corporation v. United States of America. See also Decision of the Tribunal on
Petitions for Intervention and Participation as Amici Curiae (under NAFTA Chapter 11
and the UNCITRAL Arbitration Rules), 17 October 2001, United Parcel Services of
America Inc. v. Government of Canada, para. 61.
47
283) US Model Bilateral Investment Treaty 2004 Art. 28(3).
284) ICSID Case No. ARB/03/17, Order in Response to a Petition for Participation as
Amicus curiae of 17 March 2006, Aguas Provinciates de Santa Fe SA, Suez, Sociedad
General de Aguas de Barcelona SA and Interagua Servicios Integrates de Agua SA v.
the Argentine Republic, para. 33; see also ICSID Order No. ARB/03/19, Order in
Response to a Petition for Transparency and Participation as Amicus Curiae of 19
May 2005, Aguas Argentinas SA, Suez, Sociedad General de Aguas de Barcelona, SA
and Vivendi Universidal SA v. the Argentine Republic. See further Christina Knahr,
‘Transparency, Third Party Participation and Access to Documents in International
Investment Arbitration’, Arbitration International 23, no. 2 (2007): 327.
285) See ‘Notes of Interpretation of Certain Chapter 11 Provisions’ (NAFTA Free Trade
Commission, 31 July 2001); see also OECD Investment Committee, ‘Transparency and
Third Party Participation in Investor-State Dispute Settlement Procedures:
Statement by the Investment Committee’ (June 2005).
for signature 18 March 1970.
288) Ibid.
289) Deiulemar Compagnia di Navigazione S.p.A. v. M/V Allegra, United States Court of
Appeals (Fourth Circuit), in Albert Jan van den Berg (ed.), Yearbook of Commercial
Arbitration Volume XXV (The Hague: Kluwer Law International, 2000). A writ of
certiorari was denied in Pacific Eternity, SA v. Deiulemar Compagnia di Navigazione
S.p.A, 529 US 1109.
291) Giorgio Bernini, ‘The Civil Law Approach to Discovery: A Comparative Overview of the
Taking of Evidence in the Anglo-American and Continental Arbitration Systems’, in
The Leading Arbitrators’ Guide to International Arbitration, ed. Laurence W. Newman
& Richard D. Hill (New York: Juris Publishing, Inc., 2008), 269.
292) See, e.g., ICDR Rules Arts 19 and 20; LCIA Rules Arts 14 and 20–22; DIS Rules Arts 26–
27; WIPO Arbitration Rules Art. 48; SCC Rules Art. 26; CIETAC Rules Arts 12.1 and 15.2.
294) See ICC Rules 2012 Art. 27; UNCITRAL Rules 2010 Art. 31.2; SCC Rules Art. 34; ACICA
Rules Art. 30; HKIAC Rules Art. 27.2; Swiss Rules 2012 Art. 29.
295) See UNCITRAL Rules 2010 Art. 31.2; SCC Rules Art. 34; ACICA Rules Art. 30; HKIAC Rules
Art. 27.2; Swiss Rules 2012 Art. 29.
296) Harris International Telecommunications, Inc. v. Islamic Republic of Iran, et al., in
Albert Jan van den Berg (ed.), Yearbook of Commercial Arbitration Volume XIV (The
Hague: Kluwer Law International, 1989), 408.
297) Ibid., 407.
298) Edgar Protiva & Eric Protiva v. the Government of the Islamic Republic of Iran, in
Albert Jan van den Bèrg (ed.), Yearbook of Commercial Arbitration Volume XXI (The
Hague: Kluwer Law International, 1996), para. 36.
299) Ibid.
300) UNCITRAL Notes on Organising Arbitral Proceedings (1996), paras 49 and 51;
‘Techniques for Controlling Time and Costs in Arbitration: Report from the ICC
Commission on Arbitration’, ICC Publication No. 843, ICC International Court of
Arbitration Bulletin 18, no. 1 (2007): para. 76.
Kluwer Arbitration is made available for personal use only. All content is protected by copyright and other intellectual property
laws. No part of this service or the information contained herein may be reproduced or transmitted in any form or by any means, or
used for advertising or promotional purposes, general distribution, creating new collective works, or for resale, without prior
written permission of the publisher.
If you would like to know more about this service, visit www.kluwerarbitration.com or contact our Sales staff at lrs-
sales@wolterskluwer.com or call +31 (0)172 64 1562.
KluwerArbitration
48

WAINCYMER. Procedure and Evidence in International Arbitration

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

WAINCYMER. Procedure and Evidence in International Arbitration

Uploaded by

Copyright:

Available Formats

KluwerArbitration

Document information Part II: The Process of an Arbitration, Chapter 10:

10.2 Comparative Law Perspectives

10.3.1 Are Evidentiary Questions Matters of Substance or Procedure?

10.3.2 Evidentiary Principles under Lex Arbitri and Arbitral Rules

10.3.3 Good Faith and Evidence

10.3.4 Public International Law and Evidence

10.3.5 Party Autonomy

10.3.6 Harmonisation Initiatives

10.4 Legal Approaches to Fact-Finding

10.4.1 Burden of Proof

10.4.2 Burden as to Defences, Exceptions, Counterclaims and Set-Off

10.4.3 Standard of Proof

10.4.4 Prima Facie Evidence

10.4.5 Proving a Negative

10.4.6 Standard of Proof Where Administrative Actions are Challenged

10.4.7 Burden of Proceeding and Onus of Proof

10.4.8 Inferences and Presumptions

10.4.9 Evidence of Intent where Relevant

10.4.10 Best Evidence

10.4.12 Evidence from the Tribunal's Own Knowledge

10.4.13 Agreed Facts

10.4.15 Integrating Legal Approaches to Fact Finding

10.5 Interrogatories, Written Questions and Notices to Admit

10.6 Proof of Applicable Law

10.7 Evidence of Aids to Interpretation

10.9 Objective Evidence and Subjective Evidence

10.10 Evidence from Prior ASR Processes between The Parties

10.11 Evidence and Findings in other Arbitral Cases

10.12 Issue Estoppel, Collateral Estoppel and Preclusion

10.13 Evidence from Local Cases or International Cases

10.14 Ex Parte Hearings

10.15 Change of Tribunal Composition

10.16 Admissibility and Inadmissible Evidence

10.16.1 Circumstantial Evidence

such a state should be allowed a more liberal recourse to inferences of fact

10.16.2 Uncorroborated Evidence

10.16.4 Parol Evidence

10.16.5 Demonstrative Evidence

10.16.6 Illegally Obtained Evidence

10.17 Privilege and Professional Secrecy

10.17.2 The Nature of Privilege

10.17.3 Tribunal Discretion and the Applicable Law

10.17.4 Cumulative Approaches

10.17.5 Lowest Common Denominator

10.17.6 Most Favourable Privilege

10.17.7 Equality and Reasonable Expectations

10.17.9 IBA Rules of Evidence and Privilege

10.17.10 Legal Privilege

10.17.11 Privilege and In-House Counsel

10.17.12 Settlement Discussions and ‘Without Prejudice’ Communications

10.17.14 Resolving Contested Privilege Claims

10.17.15 Annulment and Enforcement

10.18 Inspections, Site Visits and Sampling

10.19 Evidence from Non-Parties

10.19.1 Unsolicited Evidence from Non-parties

10.19.2 Amicus Curiae Briefs

10.21 Preserving Evidence

10.22 Timing of Evidential Material

10.22.2 Deadlines for Evidentiary Submissions and Documentary Production

10.22.3 Admissibility of New Evidence

You might also like