How evidence will be introduced, obtained, perceived, and weighed are matters of
concern for all lawyers who practice in the fi eld of dispute resolution. For practitioners
of international arbitration, it is no different. Nevertheless, while advocates
appearing before domestic courts may attain guidance on these questions from their
domestic rules on evidence, one may query as to what code those who ply their skills
in international arbitration may appeal for answers?
Today we are in a more fortunate position than previous decades, as this question
has been partially answered with the emergence of the IBA Rules on the Taking
of Evidence in International Arbitration. In the Rules one fi nds broadly accepted
standards which result from a convergence between the civil and common law
systems. It is this ever-increasing acceptance of the Rules (or at the very least the
principles found therein) which supports the conclusion that they may be relied
upon by counsel and arbitrator alike as affi rmations of correct and good evidentiary
procedure.
The above being said, the IBA Rules do not cover all aspects of evidentiary
procedure, and one may further notice that they do not provide great detail. That we
do not have a more defi ned and wider reaching code of evidence in international
arbitration may be put down to any number of reasons; a central one being an overarching
desire to keep the process free of too many rules and procedures. Such a
rationale for keeping with the minimalist approach is valid, but, if procedural fi ghts,
or disputes generally, could be avoided by simply not having rules, then there would
be no such thing as the rules of war. In fact, we know that simply because the IBA
Rules do not speak in detail to many issues, it does not mean that tribunals are not
regularly confronted with diffi cult questions about evidentiary procedure.