Determination of facts and the application of rules of evidence are at the core of arbitration law. The application of rules of evidence in arbitration is guided by the principle of autonomy of the parties and the discretion of the arbitration tribunal.
The rules of evidence
Generally, the parties to an arbitration are free to choose which rules of evidence will apply. However, in practice, the parties often fail to agree upon specific rules of evidence, whereupon the arbitration tribunal may, subject to due process, decide which rules to apply.
Factors that arbitrators consider include:
- the laws of the place where the arbitration tribunal is sitting and the requirements of local arbitration rules, including the fundamental rights that the parties enjoy in the arbitration procedure;
- the experience that the arbitrators have of the rules of evidence; and
- the Rules for the Taking of Evidence in International Arbitration of the International Bar Association. These rules offer a choice to the arbitration tribunal for determining the rules of evidence, and are not mandatory.
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Charles Pan is a senior consultant and Will Lu is an associate in the Shanghai office of Yao Liang Law Offices
701/702 Huaxia Bank Tower
256 Pudong Nan Road
Pudong New Area
Postal code: 200120
Tel: + 86 21 5155 0338
Fax: + 86 21 5155 0051
www.yaolianglaw.com
E-mail:lilla.guo@yaolianglaw.com
