Originally from ICDR Awards and Commentaries - Volume 2

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“The taking of evidence is one of the most important issues that arbitrators have to settle.” 

Evidence in international arbitration is a topic quite neglected: national laws, international conventions as well as institutional and ad hoc rules usually barely mention evidence. 

On the basis of this postulate, it is easy to assume that the drafters have intentionally chosen to omit evidence matters from international arbitration laws and rules. Arbitration is attractive because it is so flexible and adaptable to the parties’ needs. Although this elision commensurate with one of the main assets of arbitration, that autonomy may have a downfall in the fact that the parties have to decide for themselves and reach an agreement among themselves.

The differences between parties from a Civil Law system and the ones from a Common Law system are mostly related to evidence and the taking of evidence. How can parties from those two different systems agree on how to deal with evidence in international arbitration?

The French and American legal systems are two examples that illustrate the Civil and Common Law systems. They are also States where arbitration holds an important place in the legal system and which are influential in international arbitration as well as in the development of the theory and practice of international arbitration.