The conduct of the evidentiary hearing is often the most challenging, but also the most fascinating stage of the arbitration process. It is here that evidence is brought to life and that the true strengths and weaknesses of each party’s case come to light. Thus, the evidentiary hearing is the moment that the outcome of the dispute begins to crystallise and that crucial insights into a party’s case are provided to the tribunal that will ultimately guide its deliberations on the merits. As such, it is not uncommon that a tribunal’s reading of the case may completely change in the light of the evidentiary hearing.
There are a number of objectives to a hearing on the merits. These include:
• to provide each party a fair opportunity to present its case, i.e., its main legal arguments and its supporting evidence, to the tribunal in person;
• to provide each party an opportunity to test and rebut the other side’s case, and in particular its fact and expert witness evidence, before the tribunal; and
• to provide the tribunal an opportunity to ask questions of both the parties’ respective counsel and each party’s fact and expert witnesses to gain clarity on any of the issues in dispute before them.
The importance of the hearing cannot be overstated and as such places a heavy burden on the tribunal and, above all, on the president of the tribunal, who bears prime responsibility for the conduct of the hearing.