Submitting Evidence in an International Arbitration: The Common Lawyer’s Guide

Abstract

National courts operate with a sophisticated set of rules governing what evidence can and cannot be introduced in court proceedings. However, unless the parties in an international arbitration agree to follow a particular set of evidentiary rules, they are generally inapplicable. Usually the applicable ‘rule’ in an international arbitration is that the tribunal has broad discretion to determine what evidence it should hear. The tribunal admits most or all of the evidence offered by the parties and then determines what weight, if any, should be given to particular pieces of evidence. Because of this practice, we submit that the critical challenge for the advocate in an international arbitration is to develop a strategy for presenting and submitting evidence that will persuade the members of the tribunal – recognizing that the art of persuasion in this context often involves the complicated process of presenting the evidence in a way that will appeal to arbitrators from several different cultures and legal traditions. In pragmatic terms, the strategic advocate needs to realize and balance the interplay between a variety of factors that arise in an international arbitration. The advocate must remember that the various international arbitration rules generally do not provide clear guidelines for the presentation of evidence and give the arbitral tribunal broad discretion in conducting the proceedings and determining admissibility. Moreover, although witness testimony can at times be powerfully persuasive, civil and common law lawyers have markedly different approaches to the credibility of written versus oral testimony. Part II of this article discusses the various methods for presenting evidence. Part III discusses current issues regarding admissibility, and Part IV discusses the challenges regarding the burden of proof in an international arbitration. Lastly, Part V discusses the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration (“IBA Rules”), which are becoming a significant reference point, if not adopted in full, in most international arbitrations. In the end, however, it is the advocate who must mold the strategic game plan to the arbitration at hand to obtain the best results.