Originally from The Arbitrator's Initiative: When, Why and How Should It Be Used? - ASA Special Series No. 45

This article addresses two subjects related to fact-finding by arbitral tribunals. The first is the exercise by arbitrators of their power sua sponte to call for production of evidence. The second is the use by arbitrators of rulings on document requests to tailor the evidence to fit their view of the case.

1.       SUA SPONTE ORDERS FOR PRODUCTION OF EVIDENCE

There are two categories of cases which raise the question of when arbitrators are justified to exercise their power to call sua sponte for the production of evidence.
One category consists of cases where matters of public policy are implicated in issues which the arbitrators consider have been inadequately explored, or not even raised. An example would be cases that concern contracts that may have been procured by corruption.  These cases are occasionally colorful in their fact patterns, but the issue raised with respect to the exercise by arbitrators of their power to call sua sponte for the production of evidence is not controversial.

More interesting because both more common and more challenging is the category consisting of less extraordinary cases where the issue of whether arbitrators should exercise their power to call sua sponte for the production of evidence may hinge, and in my view should hinge, on the extent to which deference on the part of arbitrators is owed to the ordinary operation of burden of proof.

I first consider below whether arbitrators have the power ex officio to call for the production of evidence. The answer is yes, and this answer applies to both categories of cases.

I then consider the conditions for exercise by arbitrators of their ex officio powers in the two categories of cases identified above.