Arbitraion: Evidence and the Hearing

Evidence

In accordance with the timetable and as soon as possible after the transfer of the file to the tribunal, the parties will be invited to present such evidence as they deem relevant and material to their submissions.

Subject to the applicable rules and laws of the arbitration, the strict rules of evidence do not apply to the proceedings. Therefore, in accordance with the applicable rules and laws, the arbitrator(s) shall decide on the admissibility of evidence, its relevance and form, and the weight that will be given to it.

The Hearing

Hearings are not always required in arbitration and it is possible for the matter to be conducted on a document only basis. However, hearings are highly desirable when the matters in dispute require further investigation, when the parties want to call witnesses, or when the arbitrator will be assisted by legal or technical argument.

On this basis, the requirement of a hearing will usually be decided at the commencement stage of the proceedings in consideration of the matters in dispute and the submissions of the parties. Once the hearing has been scheduled into the timetable, the parties will be summoned to appear in front of the tribunal on those scheduled dates, whereby failure to attend without due course or agreement could result in the hearing being continued in that party’s absence.

Hearings are conducted in a similar manner to traditional litigation hearings, save that the selected procedural rules will apply in place of the strict rules of evidence. Generally, evidence-in-chief is presented, after which the other side will be given the opportunity to cross-examine or rebut through the submisson of their own evidence.

The arbitrator(s) will remain in control of the hearing, and shall have final say on its conduct.

 

Inspection and Investigation

Arbitrators have the power to carry out their own investigations including taking the initiative in ascertaining the facts and the law. The arbitrator may ask his own questions of the parties and may request additional information or documentation as deemed necessary for the tribunal to be fully informed of all the circumstances surrounding the dispute.

The parties will have a limited amount of time to present the information or documentation required by the arbitrator, or to provide adequate reasoning as to why the requested information or documentation is not available. Any undue delays to the proceedings for impromptu responses may result in additional costs being allocated in the final award to the offending party.

Experts

The use of experts is fairly common in more technical disputes. The tribunal may require that both parties appoint their own experts, or that an independent neutral be appointed by the tribunal. Use of an expert will be in accordance with any terms provided by the tribunal, which may include the requirement of a preliminary meeting to establish the specific technical areas that are in dispute.

The tribunal may also limit the use of experts, where such use is deemed inappropriate and unnecessary for the proceedings, such as when the arbitrator is himself considered an expert or has knowledge enough to ascertain the relevant facts without the use of an expert.

Closing

In summing up the tribunal may request closing submissions from the parties. Once the tribunal is satisfied that all parties have had an adequate opportunity to present their case, the proceedings can be declared closed, after which no further submissions or evidence can be produced unless expressly requested by the arbitrators.

The tribunal will then retire to consider all of the submissions, claims, arguments and evidence presented to them from which their decision and awards will be made.