The role of documentary evidence in arbitration
Produced in partnership with Simmons & Simmons
The role of documentary evidence in arbitration

The following Arbitration practice note produced in partnership with Simmons & Simmons provides comprehensive and up to date legal information covering:

  • The role of documentary evidence in arbitration
  • Differences between document production in litigation and arbitration
  • Applicable rules
  • Introducing documentary evidence into an arbitration
  • Establishing the framework for documentary evidence production early in proceedings
  • Documents in the control of third parties
  • Application of rules of evidence
  • Practical tips on introducing documentary evidence into arbitration

Documentary evidence is essential to the resolution of disputes in international arbitration. It is widely recognised as being of greater significance, and is often given greater weight by arbitral tribunals, than any other form of evidence.

Differences between document production in litigation and arbitration

One of the core principles underlying arbitration is that the procedure of the arbitration should be flexible and be determined by the parties and, where they cannot agree, by the tribunal. This is, for example, set out in section 34(1) of the English Arbitration Act 1996 (AA 1996) which states that it shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter. Procedural and evidential matters are stated in AA 1996, s 34(2)(d) and (f) to include what documents if any should be disclosed, when they should be disclosed and whether any strict rules of evidence should be applied.

In practice, even in an arbitration in England between English parties, document production is unlikely to follow the same format as document disclosure in English litigation. For example, in Travellers Insurance Company v Countrywide Surveyors, the court stated that it had no power to order pre-action disclosure under section 33(2) of the Senior Courts Act 1981 and CPR 31.6 where the underlying dispute is subject to a binding arbitration agreement.

The extent

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