Documentary Evidence in Arbitration.

Posted on 21/05/2016 · Posted in Arbitration

Evidence is an essential element of arbitration proceedings, but the practices and procedures involved in obtaining and presenting evidence vary across the globe. The principle of open evidence, meaning that all relevant material should be put in front of a court in order for it to be able to deal with a specific case fairly, is an important part of the justice system in the UK, but when considering whether particular documents or materials are suitable for submission as evidence, arbitrators must also consider relevance, reliability and admissibility. Arbitrators generally have broad jurisdiction as to the admissibility of evidence.

Direct and Indirect Evidence

In regard to both documentary evidence and testimonial evidence, international tribunals distinguish between “direct” or “primary” evidence and “indirect” or “secondary” evidence. The direct evidence of a document is the document itself. A copy of the document or testimony as to the contents of the document by a person who has read it is indirect evidence. Direct testimonial evidence is the testimony of a witness who has personal knowledge of a fact or event. The affidavit of such a witness, as well as the testimony of a witness (i.e. “hearsay” testimony), are indirect evidence.

In international arbitration the distinction between direct or primary evidence and indirect or secondary evidence involves the weight of the evidence, not its admissibility. Direct evidence is preferred and will generally be given more weight than indirect evidence. Nevertheless, indirect evidence is still generally accepted by international tribunals.

Hearsay Evidence

Hearsay evidence relates to any oral or written statement made by a person who is not the witness testifying to that which is contained in a statement.

Hearsay evidence is generally admissible in civil proceedings and is defined by the Civil Evidence Act 1995 and Criminal Procedural Rules. In criminal proceedings, hearsay evidence is admissible if it falls within one of the permitted categories set out in section 114 of the Criminal Justice Act 2003, or where all parties involved agree to it being admissible, or else where the arbitrator is satisfied that it is in the interests of a fair and just outcome.

Hearsay evidence can be an important tool in the evidence put forward in arbitration proceedings, but the arbitrator must ensure the evidence is relevant and reliable, and potentially even request further context, before deeming it admissible.


Even a relevant document may not be submitted as evidence unless its authenticity has been proven, and an arbitrator must be convinced by a party that the document is what they say it is. While some arbitrators may not insist on a document being authenticated, doing so will make it more compelling evidence.

The method of authenticating a document can vary, but in general handwriting, signatures and other identifying characteristics will be used to identify and authenticate documents.

Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence”
John Adams

Documents Requests

The use of supporting documents is becoming more common in arbitration proceedings and this is generally seen as a positive evolution – documents can play an important role in contributing to the understanding of a dispute and helping to support a party’s claims. Documents are also considered a reliable source of evidence. Under English law, the Civil Procedure Rules’ 1996.5 standard disclosure clause sets out the obligation for a party to disclose all relevant and admissible documents.

However, broad requests for document submission and resulting access can sometimes slow proceedings and as a result lead to mounting costs – all of which goes against the principle benefits of arbitration proceedings – so arbitrators must always consider the appropriateness of the requests.

Arbitrator Discretion

Arbitration rules tend to give broad authority to arbitrators regarding the consideration and admission of evidence. The London Court of International Arbitration (LCIA) Arbitration Rules art.22.1 (vi) sets out that arbitrators may “decide whether or not to apply any strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material tendered by a party on any issue of fact or expert opinion; and to decide the time, manner and form in which such material should be exchanged between the parties and presented to the Arbitral Tribunal;”

It is therefore down to the arbitrator’s discretion as to whether documentary evidence is admissible for evidence as part of arbitration proceedings. He or she may equally reject evidence that appears insubstantial or unsuitable. The presiding arbitrator may decide to set out up front the way in which he or she intends to proceed in terms of the way evidence is put forward and presented. Again, it is at the discretion of the arbitrator as to when documentary evidence is no longer admissible and a final decision is ready to be taken.

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Expert Evidence is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.