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