Presenting, Taking and Evaluating Evidence in International Arbitration - Chapter 14 - ICDR Handbook on International Arbitration Practice - Second Edition
Originally from the ICDR Handbook on International Arbitration Practice - Second Edition
At the outset, though it does not need long explanation, one has to realize the high relevance of evidence procedures. We are all aware that there are also considerable differences in the methods of pleading legal positions and that, of course, finally, the decisions on the relief sought by the Parties is in application of the law. But before one reaches the procedural stage of such decisions, it is the facts of the case which have to be established by the Tribunal and which determine which legal provisions are applicable and lead to the legal conclusions. And these facts of the case are found in application of the evidence procedures used by the Parties and the Tribunal.
While this is self-understood in the abstract, in practice this has the effect that, in most commercial arbitral procedures, the parties spend far more time and work on the evidence procedure, which also means that it is more expensive for the parties. This is a necessary investment for the parties, because, if they cannot fulfil their burden of proof regarding the facts, they cannot prevail in the outcome of the case.
National law and practice in court proceedings differ widely throughout the world regarding the presentation, taking and evaluation of evidence. While they may be applicable or at least serve as guidance for domestic arbitration, in international arbitration one has to find common denominators or new rules and practices to have a level playing field for parties and lawyers who come from different evidence traditions. This can only be achieved if the players involved are ready to accept variations of their own national evidence traditions.
For example, in German court proceedings it is still the usual practice for witnesses to be invited and examined by the judges. Advance written witness statements are normally not permitted because they are considered to be influenced by the parties and their lawyers. Yet, in international arbitration, for a number of good reasons, advance written witness statements are the usual practice and at the hearing, direct examination and cross-examination are conducted by the lawyers for the parties, with the arbitrators asking further questions.