Author: Martin Hunter*
Published: December 1992
Choice of Forum/Place of Proceedings
Description: 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. 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.
*Martin Hunter has been a partner in Freshfields since 1967; is co-author of Law and Practice of International Arbitration, now in its second edition and widely recognised as an authoritative work in its field; is a member of ICCA; has participated in the work of international arbitration institutions through membership of the Arbitration Courts of the ICC and LCIA; is Deputy-Chairman of a U.K. governmental committee on arbitration law; and is Honorary Dean of Postgraduate Studies at the Asser Instituut, The Hague.