Evidence In International Commercial Arbitration

International commercial arbitration now becomes an important, even the most preferred method of dispute resolution. Since evidentiary issues relate to the result of the award directly, they are important to any mechanism of dispute settlement including international commercial arbitration. The legislation on arbitration in almost every country provides just a few provisions on evidence, and such is the case with great majority of the institutional rules. Thus the tribunals play an important role in determining the evidentiary rules in international arbitral practice.To determine the rules of evidence in international commercial arbitration properly, several relationships should be handled and balanced very well. First, the participants in international commercial arbitration come from different countries with different legal cultures. One of the key issues to be resovled in determining evidentiary rules properly is how to balance the different legal cultures. Secondly, as to the relationships between efficiency and fairness of international commercial arbitration, there exist conflicting viewpoints. It is necessary to balance their relationship in practice. Otherwise, the parties to international transactions will lose the confidence for international commercial arbitration, because efficiency and fairness of international commercial arbitration are both important factors considered when they choose arbitration other litigation. Thirdly, flexibility is the spirit of international commercial arbitration. However, the lack of fundamental predictability and un-availablity of protection for reasonable expectation will disappoint the parties to arbitration. Thus, many specific arbitral rules of evidence have been compiled, and they play a more and more important role in international arbital practice. Balancing the relationship between flexibility and predictability, different legal cultures, and efficiency and fairness properly are the preconditions to wide acceptance of the arbitral rules of evidence.So, the thesis makes a research on evidence in international commercial arbitration from the perspective of balancing the relationships mentioned above. The thesis sets out in seven parts, besides the introduction and conclusions, with more than 200 thousands of Chinese characters.Chapter I, the Compilation and Its Tendency of Evidentiary Rules in International Commercial Arbitration. First, it discusses the sources and characters of evidentiary rules in international commercial arbitration, and then it illustrates that more and more attention was paid on the compilation of specific evidentiary rules in international commercial arbitration, among which IBA Rules is one of such successful examples. In fact, these rules take the form of soft law. Following that, due to the hot debate on the necessity of evidentiary rules in international arbitration, it explores the reasons for compilation of those rules. In the end, it makes a further study on the tendency of development of these evidentiary rules of international arbitration, namely they become harmonized to a very large extent.Chapter II, the Determination and Application of Evidentiary Rules in International Commercial Arbitration. First, it introduces the role that the parties and the tribunal play in determining the evidentiary rules in international commercial arbitration. Secondly, it discusses the limit of the freedom enjoyed by the parties and the tribunal in determining the evidentiary rules in international commercial arbitration. One of them is mandatory rules of the law governing the arbitral procedure, and the other is the rules on whether the court provides assistance in taking evidence for international commercial arbitration. Thirdly, it discusses why evidence law should not be applied strictly in international commercial arbitration, but illustrates that the legal cultures of the participants have a really great impact on the determination of evidentiary rules in international commercial arbitration. Finally, it illustrates that international soft law of evidence in the example of IBA Rules plays an important role in the practice of international commercial arbitration, even if the parties don’t agree to the applicability of IBA Rules explicitely.Chapter III, Document Production in International Commercial Arbitration. It first introduces the general issues on documents production, and then emphasizes that the US-syle discovery should be not apppicable to international commercial arbitration for the reason of efficiency, and finally discusses the tribunal’s power of ordering the parties to produce unfavorable documents and the scope and requirements of document production. Moreover, it introduces the remedies a party to arbitration may obtain in case of the parties and the third parties’refusal to produce the required documents. Following that, it covers the issue of disclosure of e-documents. It make and description of attributes of e-document and the potential problems and chanlenges they bring about to international commercial arbitration, and further explores such issues as the scope of e-document production, the form of e-document production, and the burden of costs. In light of the unmature practice of e-doucment production, it is submitted that the rules of e-document production should be determined by the parties’agreement, or by the tribunal consulting with the parties as soon as the arbitral procedure begins.Chapter IV, Presentation of Oral Evidence in International Commercial Arbitration. First, it illustrates the cultural harmonization in the aspects of presentation of witness, written statement, and witness’s attending evidentiary hearings in international arbitral procedures. Secondly, it discusses the issues such as qualification of expert, the discretion of the tribunal to designate experts, the due process relating to expert’s discretion, expert report and expert witness’s examination. Thirdly, it analyzes the reasons why party-designated expert and tribunal-designated expert co-exist, their advantages and disadvantages, the way to choose the mode and overcome their disadvantages in context of international commercial arbitration.Chapter V, National Court’s Assistance in Taking Evidence for International Commercial Arbitration. Because the arbitral tribunals have no coercive power, and in case of non-cooperation of the parties or the third parties to produce the required evidence, whether or not the national court’s assistance could be sought is very important for the reason that the material evidence un-available affects the accuracy of awards, even the country’s reputation as seat of arbitration. First, it discusses the fundamental theories on national court’s assistance in taking evidence for international commercial arbitration, such as the nature of international commercial arbitration, the shortages of arbitral tribunal’s power, the general tendency of pro-arbitration policy implemented world-widely. Secondly, it introduces the positions of different countries on national court’s assistance in taking evidence for international commercial arbitration conducted domestically, and reaches a conclusion that most countries admit such judicial assistance, and analyzes the characters of the rules of those countries on court’s assistance. Thirdly, it makes a further study on the positions of different countries on national court’s assistance in taking evidence for foreign arbitration, reaches a conclusion that just a few countries hold a clear position to support foreign arbitration in the aspect of taking evidence, further analyzes the reasons and puts forward to some proposals.Chapter VI, Admissibility and Assessment of Evidence in International commercial arbitration. First, it discusses the tribunal’s discretion in determining the relevance and admissibility of evidence, and why there is no necessity of considering the complex rules on Evidence of admissibility in common countries. Secondly, it covers the issue of privilege, which is recognized world-widely. it discusses the categories and nature of privilege, explores the approach to determine the applicable law to privilege, such as the closest connection principle, contract approach, uniform approach, the most favorable nation approach, and introduces a method to identify whether the information is protected by privilege, i.e., appointing a neutral expert, whose mission is to provide expert report to the parties and the tribunal, to check the information. Thirdly, it discusses the tribunal’s discretion in determining the materiality and weight of evidence, and the standard of proof in international commercial arbitration. Fourthly, since drawing adverse inference is a procedural tool to make clear the disputed fact, it discusses the following questions: what is the source of the tribunal’s power of drawing adverse inference? What requirements should be met in drawing adverse inference? Whether and in what circumstances adverse inference could be drawn against the third party? Where is the limit of the tribunal’s discretion in drawing adverse inference?Chapter VII, the Evidentiary Issues in Chinese International Arbitration. It first introduces the status and the problems on the rule-making and related practice on evidence in Chinese international arbitration, then illustrates that the the phenomenon of judicialisation and localization exiting in determining and applying evidentiary rules in Chinese international arbitration, analyzes the main reasons, and puts forward to the countermeasures and proposals.It then illustrates the problems existing in the aspects of gathering and presenting evidence, after that, it introduces the defect existing in Chinese legislation on the court’s assistance in taking evidence for international commercial arbitration, and puts forward to some proposals on establishment of rules on court’s assistance in taking evidence for international commercial arbitration. Finally, as to the admissibility and assessment of evidence, it suggests that the arbitral practice should not be influenced too much by Chinese litigation. Moreover, as to the standard of proof, preponderance of evidence should be applied, and proof in a convincing manner is not applicable in Chinese international arbitration, like that in civil litigation.While the evidence in international commercial arbitration is a hot-debated issue in the field of international commercial arbitration in recent years, it is still not paid enough attention in China. The present thesis makes a comparative study on the issue of evidence in international commercial arbitration, in both theoretical and empirical approach, and in the perspective of balancing the relationship between efficiency and fairness, between the different legal cultures, and between flexibility and predictability, and aims to provide guidance for the practice of evidentiary matters in Chinese international arbitration, and to promote the status of China as center of international arbitration with good reputation.