The Principle of Party Autonomy and Its Exceptions in the Taking of Evidence in International Commercial and Investment Arbitration

Abstract

The taking of evidence is one of the central issues in every international arbitration procedure which includes producing documents, hearing parties and also doing inspections. It is important for the parties and arbitral tribunal to be aware of the rules that govern the taking of evidence, because issuing any award by the arbitration tribunal requires the involvement with the taking of evidence process. By studying international instruments, national laws on arbitration, the procedures of international arbitration institutions and also the awards of arbitral tribunals, it becomes clear that because of the consensual nature of arbitration, the rules on the taking of evidence have been based on the principle of party autonomy. The will of the parties in this regard may be explicit or implicit or even may be in the form of the delegation of the authority to the arbitrator to determine the rules. However, the arbitral tribunal and the parties should comply with the due process requirements, the efficient proceedings principle, the duty of good faith and the principle of confidentiality.