Obtaining Evidence from Third Parties in International Arbitration

Abstract

INTERNATIONAL ARBITRATION is compared against court proceedings as to factors such as time, cost, effectiveness and enforceability. In an article published recently we reviewed how documents could be obtained from adverse parties in international arbitration.1 This article deals with obtaining evidence from third parties, which to some practitioners is one of the disadvantages of arbitration. There are two basic types of evidence: first, documentary or physical evidence that is in the possession of the third party; second, testimony of third parties or employees of third parties. With respect to each type of evidence, there is also an issue as to the timing and enforcement of rights to obtain evidence from third parties. To date, the discussion of these issues has been limited, but the issues are becoming more important as international arbitration and its relation with national courts evolves. The IBA Rules of Evidence in International Commercial Arbitration of 1999 (the ‘IBA Rules of Evidence’) refer to the possibility of obtaining evidence from third parties in arbitrations, but where permitted by national law.2 Since international arbitration involves national law of several different countries, the issue becomes which national law is relevant and when. Obtaining third party evidence usually depends on the law of the place where the arbitral hearings are held (the ‘Law of the Hearings’). One expects most hearings to take place at the seat or place of arbitration.3 For such hearings the law of the country of the seat of the arbitration is relevant (the ‘Law of the Seat’). However, in obtaining evidence from third parties, it may be necessary or helpful for the tribunal to hold hearings in a country or several countries other than that of the seat of the arbitration. Such hearings are permitted by most arbitration rules and will probably be …