Switzerland: The Guide To Evidence In International Arbitration

Evidentiary Objections

As in state court proceedings, the success of a claim in arbitration proceedings will hinge on the parties' ability to corroborate their claims and allegations with evidence. Generally, the parties involved in an international arbitration are free to submit any evidence they deem fit to prove the relevant facts. The opposing party has the option of providing its own favourable evidence, or it may attempt to weaken the other party's evidence.

Although one option may be to attack the veracity or weight of the opposing party's evidence, another possibility may be to call into question its admissibility by way of evidentiary objections. It then falls within the power of the tribunal to evaluate the evidence,² including its admissibility.³ The rules of admissibility of evidence can be applied to all forms of evidence alike (e.g., documents, witness evidence, expert evidence).⁴

In view of the cross-border nature of international arbitration, the parties and tribunals may have different expectations for rules of evidence and admissibility. As one author notes: 'The expectations of parties from different legal systems are never so likely to conflict as with questions of evidence.'⁵

This chapter examines these objections to the admissibility of evidence. After addressing the legal sources for evidentiary objections found in national arbitration laws, institutional rules and soft law, we then analyse key evidentiary objections. The chapter concludes with some remarks on the decisions by the tribunal on admissibility, as well as ensuing issues of annulment or recognition and enforcement of awards made pursuant to such decisions.

Legal sources for evidentiary objections

In keeping with the overriding principle of party autonomy in arbitration, national arbitration laws and institutional rules frequently leave the parties with the freedom to agree on the applicable evidentiary rules, including any issue of the admissibility of evidence.⁶ Examples would be where the parties agree that any statements made within settlement negotiations may not be used against a party in the ensuing proceedings, or where they agree either to exclude expert reports or to have the tribunal decide based on documents only.⁷ An exception may be made where such agreements would run counter to the principle of the equality of arms between the parties or other fundamental pillars of arbitral proceedings, in which case the tribunal may apply a different evidentiary rule than that agreed by the parties.⁸ However, it will exercise caution before doing so, as a violation of agreed procedural rules may leave an award susceptible to recognition and enforcement problems.⁹ In practice, however, the parties will rarely have made agreements on evidentiary objections or the admissibility of evidence in their arbitration agreement and will frequently also not see eye-to-eye on such issues during the arbitral proceedings.

In the absence of a party agreement on evidentiary rules, national arbitration laws and institutional rules generally afford tribunals considerable discretion in evidentiary matters, including the issue of admissibility.¹⁰ National arbitration laws also rarely contain express rules on the production of documents.¹¹

The International Bar Association's Rules on the Taking of Evidence in International Arbitration (the IBA Rules), most recently revised in 2020, provide detailed guidelines for an efficient, economical and fair process for the taking of evidence in international arbitration,¹² including detailed guidance on when evidence may be declared inadmissible.¹³ (These grounds to exclude evidence incorporated therein are reviewed in more detail below.) The IBA Rules reflect common practices used in international arbitration that harmonise civil and common law approaches. They are intended to supplement the institutional or ad hoc rules that apply to the conduct of international arbitration. Unless explicitly agreed by the parties, the IBA Rules are not binding on the arbitral tribunal.

In 2018, the Rules on the Efficient Conduct of Proceedings in International Arbitration (known as the Prague Rules) were released with the aim of providing an alternative to the IBA Rules. The drafters of the Prague Rules intended to increase efficiency and reduce costs in arbitral proceedings by encouraging the tribunal and the parties to avoid any form of document production, including any form of e-discovery.¹⁴ The Prague Rules openly adopt an inquisitorial approach that is more in line with the civil law tradition. When document production is provided as an exception, the requested documents must be relevant and material to the outcome of the case, not be in the public domain and must be in the possession of another party or within its power or control.¹⁵ The Prague Rules provide no further guidance on the admissibility of documentary evidence.

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Footnotes

1. Cinzia Catelli is a partner and Romana Brueggemann is an associate at Bär & Karrer Ltd. The authors wish to thank Anastasia Monighetti, junior associate at the authors' firm, for her research assistance and critical review of this chapter.

2. Robert F Pietrowski, 'Evidence in International Arbitration' in William W Park (ed), Arbitration International, Vol. 22, Issue 3, 373 (Oxford University Press, 2006).

3. Bernhard Berger and Franz Kellerhals, International and Domestic Arbitration in Switzerland, para. 1319 (3rd ed., Stämpfli Verlag AG, 2015).

4. See Nigel Blackaby, Constantine Partasides, et al., Redfern and Hunter on International Arbitration, para. 6.142 and paras. 6.127 to 6.128 (6th ed., Oxford University Press, 2015); see also Roman Mikhailovich Khodykin, Carol Mulcahy and Nicholas Fletcher, A Guide to the IBA Rules on the Taking of Evidence in International Arbitration, para. 12.65 (Oxford University Press, 2019); Berger and Kellerhals, op.cit, at para. 1319.

5. David D Caron and Lee M Caplan, The UNCITRAL Arbitration Rules, 555 (2nd ed., Oxford University Press, 2013), also quoted by Gary B Born, International Commercial Arbitration, 2481 (3rd ed., Kluwer Law International, 2021).

6. English Arbitration Act 1996, Section 34, paras. (1) and (2)(f) (see also Samir A Saleh, 'Reflections on Admissibility of Evidence: Interrelation between Domestic Law and International Arbitration' in William W Park (ed), Arbitration International, Vol. 15, Issue 2, 153 (Oxford University Press, 1999)); German Code of Civil Procedure, §§ 1042(3) and (4); UNCITRAL Model Law, Article 19; under Swiss arbitration law, see Swiss Federal Act on Private International Law [PILA], Article 182 and Marc D Veit, 'Part II: Commentary on Chapter 12 PILS, Article 184 [Procedure: taking of evidence]' (Chapter 2) in Manuel Arroyo (ed), Arbitration in Switzerland: The Practitioner's Guide, para. 14 (2nd ed., Kluwer Law International, 2018).

7. See Saleh, op.cit., at 143; under Swiss arbitration law: Christian Oetiker, 'Art. 184 IPRG' in Markus Müller-Chen and Corinne Widmer Lüchinger (eds), Zürcher Kommentar zum IPRG, para. 19 (3rd ed., Schulthess Juristische Medien AG, 2018).

8. Born, op.cit., at 2307. Under English law, if the tribunal is unwilling to comply with an evidentiary rule set up by the parties, they may resign as arbitrators (Robert Merkin, Arbitration Act 1999, An Annotated Guide, 58 (Lloyd's Commercial Law Library, 1996)).

9. See New York Convention, Article V(1)(d).

10. English Arbitration Act 1996, Section 34, paras. (1) and (2)(f); German Code of Civil Procedure, § 1042(4); UNCITRAL Model Law, Article 19(2); see also Jean-François Poudret and Sébastien Besson, Comparative Law of International Arbitration, para. 647 (2nd ed., Thomson/Schulthess Juristische Medien AG, 2007); Pietrowski, op.cit., at 377; Born, op.cit., at 2317, 2428; Swiss Rules 2021, Article 26(1); UNCITRAL Rules 2013, Article 27(4); LCIA Rules 2020, Article 22.1(vi). According to Article 22(2) of the ICC Rules 2021 and Article 21.3 of the DIS Rules 2018, the tribunal shall, after consulting the parties, adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties.

11. For one exception, see English Arbitration Act 1996, Section 34(2)(d).

12. Foreword to the IBA Rules.

13. IBA Rules, Article 9; Poudret/Besson, op.cit., at para. 647.

14. Prague Rules, Article 4.2.

15. id., at Article 4.5.

Originally published by Law Business Research 2021 - Global Arbitration Review.

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