1. INTRODUCTION AND GENERAL ASPECTS OF FACT-FINDING
1.1. The Notion of Fact-finding
When we talk about the arbitrator’s initiative in fact-finding, we should first determine what fact-finding by an arbitrator means.
As a broad description, I would say that this generally relates to an arbitrator’s gathering and ascertaining the facts that will form the basis of the arbitral award.
Within this general description, we need to make a distinction between the assessment of facts and evidence submitted by parties, and facts or evidence collected on an arbitrator’s own initiative. It is uncontroversial that assessing facts and evidence submitted by parties is the principle task of an arbitrator. More difficult questions arise, however, when arbitrators wish to make their own enquiries to seek information and obtain evidence that is not on the record in the proceedings or that is being presented and relied upon by the parties for different purposes—i.e., to complement the parties’ presentations in one way or another.
It is this latter form of fact-finding that will be the subject matter of this presentation.
1.2. Inquisitorial versus Adversarial Approach
In this context, we often hear about the distinction between the so-called inquisitorial as opposed to the adversarial (or adversary) approach. Black’s Law Dictionary defines the adversary system as: “A procedural system, such as the Anglo-American legal system, involving active and unhindered parties contesting with each other to put forth a case before an independent decision-maker.” Conversely, the inquisitorial system is defined as: “A system of proof-taking used in civil law, whereby the judge conducts the trial, determines what questions to ask, and defines the scope and the extent of the inquiry. This system prevails in most of continental Europe […]”.