Originally from American Review of International Arbitration - ARIA

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Many aspects of the law and practice of international commercial arbitration have changed profoundly in the second half of the twentieth century. The treatment of arbitration clauses by national courts; the related but distinct topics of separability and arbitrability; and the appointment and removal of arbitrators are just a few notable examples. Less visible, but equally important from the practitioner's viewpoint, are the changes that have taken place in relation to the conduct of the arbitral proceedings. Within that quite wide topic, there has in recent years been a significant shift in the practices adopted by arbitral tribunals, and the lawyers who appear before them, towards the presentation of evidence. The purpose of this essay is to analyse these changes; to identify the reasons for change; and to make some predictions for the future.

The role of evidence, as opposed to argument or other forms of submissions, is to assist the arbitral tribunal in making appropriate findings on disputed issues of fact.1 Evidence may be laid before the arbitral tribunal by various means ranging from, at one end of the scale, a full adversarial process (under which the parties take full responsibility to present all the evidence through the mouths of witnesses who appear at the hearings) to, at the other end, the arbitral tribunal undertaking the entire initiative for investigating the evidence relating to the disputed facts. Where the arbitral tribunal adopts a wholly investigative role it is scarcely necessary to impose any rules as to the admissibility of evidence. But where the initiative is in the hands of the parties some rules must be imposed in order to ensure equality of treatment and due process, even if it is not necessary to go so far as to incorporate rules of a highly technical nature — for example, the rule as to the non-admissibility of "hearsay" evidence adopted in some countries which follow the common law system.

I. THE SIGNIFICANCE OF THE PLACE OF ARBITRATION

A widely held misconception is that the way in which the evidence will be presented to an arbitral tribunal depends entirely on the place of arbitration. It is true that any mandatory rules of the lex arbitri must be respected, in order to avoid any risk of the award being set aside in the courts at the place of arbitration. However, it is unusual for the law of the place of arbitration to forbid the parties from agreeing on the way in which evidence is presented; and most sets of arbitration rules (which, when imported, operate as an agreement between the parties) permit the arbitral tribunal itself to determine the way in which the arbitration is to be