Originally from: Soft Law in International Arbitration

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INTRODUCTION

An aspect of international arbitration that is least dealt with in the
institutional ad hoc rules is that which concerns what is or should be
done in the gathering and presentation of evidence, whether in the form
of documentary or oral presentations. The rules generally leave the
conduct of the proceedings with respect to evidence to the parties and the
arbitrators. Yet disputes and misunderstandings can arise between
parties, particularly those from different legal cultures, concerning such
matters as the required production of documents from another party,
interviewing of witnesses in advance of a hearing, the use of experts, the
presentation of oral testimony and the cross-examination of witnesses.
The soft law discussed in this section endeavors to provide guidance in
these and other areas.

The IBA Rules

The most important body of soft law concerned with evidence in
international arbitration is the IBA Rules on the Taking of Evidence in
International Arbitration, which were first issued in 1999 by the
International Bar Association and revised and promulgated in a second
edition in May of 2010. The IBA Rules have been used as guidance by
being adopted—or, probably more usually, referred to—in countless
arbitration proceedings.

The IBA Rules use the word “taking” with respect to evidence and
make clear that this term refers both to the obtaining of evidence by the
parties and the receipt of it by the arbitral tribunal. The Rules have as
their basis the principles that “each party shall act in good faith and be