Abstract
This article examines the impact of party autonomy and fair hearing on assessment of evidence in international arbitration and in consequence proffers some recommendations as a panacea for the negative impact of these concepts on assessing evidence and their consequences on award. The author is not aware of any previous studies in this area. It was found that evidence is assessed at the stage when parties and their legal representatives are not involved in the process and this has resulted, in some cases, in Arbitral Tribunals oversighting party autonomy and fair hearing. This has led to disruption of arbitration and several awards being set aside with consequent wastage of time and resources. The doctrinal research method was used. As a result this article examined the law in the area as it is and offered a critique in some instances and where appropriate provided an explanation of the law by placing it in a useful theoretical context. Primary sources (legislations, conventions and case–laws) as well as secondary literature in the area were studied in the theoretical and or conceptual dimensions of the articles
Highlights
Evidence is a vital tool of dispute resolution whether in arbitration or litigation
The principle of party autonomy permeates every aspect of arbitration including evidentiary issues and has been approved by national laws, institutional rules and international conventions
Given the dominance and role of party autonomy in arbitration, and that in weighing evidence and drawing inferences from it, there are no fixed rules but rather it depends mainly on common sense, logic, experience and shrewdness of the arbiter; the question is, would parties agree on weight of evidence and how would they arrive at that? It is submitted that given the nature of this area of arbitration, in practice, parties do not usually agree on the weight or how to determine the weight to be attached to evidence gathered and presented in their arbitration
Summary
Evidence is a vital tool of dispute resolution whether in arbitration or litigation. Before parties get to the stage of presenting evidence, they must have pleaded the facts upon which their cases are based and for which evidence is required to prove, except if the facts are admitted. The principle of party autonomy permeates every aspect of arbitration including evidentiary issues and has been approved by national laws, institutional rules and international conventions By this doctrine, parties are free to agree, subject to such safeguards as are necessary in the public interest, on the procedure to be followed by arbitral tribunal in conducting the proceedings[4]. Fair hearing is a mandatory pillar, the grundnorm, of every fair adjudication which must be observed but must be seen to be observed by every tribunal This principle, whose focal point is to give parties equal opportunities of presenting their cases and responding to that of their opponent, is applicable in every aspect of arbitration. This article discusses the interaction and its impact on assessing evidence
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