Tribunal Duties and the Exclusion of Evidence in International

Arbitration: The Tug-of-War of Fairness and Efficiency

Aleksander Godhe1

Abstract
The aim of arbitral procedure is to strike the right balance between fairness and efficiency in
the specific and unique circumstances of the case. However, in some difficult cases both
considerations can pull in opposite directions. The exclusion of evidence provides a particularly
apt example in which the dilemma arises, aggravated by the considerable evidentiary discretion
vested in tribunals and overall lack of guidance in applicable laws and rules on approaching
such circumstances. This article argues that the tug of war between fairness and efficiency in
the context of exclusion of evidence can be resolved with the help of relevant tribunal duties
which should guide the exercise of tribunal discretion. These include the duty (1) to resolve the
dispute (2) to observe due process (3) to conduct the procedure efficiently and effectively (4)
to act with impartiality and independence and (5) to render an award that is enforceable/not
subject to set aside.

No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor
will we go upon him nor send upon him, except by the lawful judgment of his peers or by the
law of the land.2

A. Introduction and background

The procedure of international arbitration is aimed at striking the right balance between two
policy considerations: fairness and efficiency.3 In an ideal world, the two are not contradictory,
but in reality they tend to come into conflict. Take, for example, circumstances in which a party
obtains evidence that makes or breaks their case. However, the said documents are covered by
legal privilege. What is the fair course of action in these circumstances? Taking another
example, a party may wish to introduce new evidence days before the deadline for the final
award. Would it be efficient for the tribunal to amend the procedural timetable in an effort to
include the evidence at all cost even if the documents have a low probative value?

It is trite, therefore, to suggest that all evidence should not be treated identically for a variety
of reasons. In some cases, evidence should not be included to the record altogether. Rules
addressing such circumstances are an important aspect of civil procedure in any legal system,
although considerable differences remain between civil and common law jurisdictions. The

1
Research Associate (Dispute Resolution) at the Centre of Construction Law & Dispute Resolution, the Dickson
Poon School of Law, King’s College London. Visiting Fellow at the Stockholm Centre for Commercial Law,
Stockholm University. I am grateful Mel Schwing and other anonymous reviewers for their comments on earlier
drafts. Any errors that remain are my own. Email: [email protected].
2
Magna Carta 1215, clause 39: one of the first references to due process in a legal document.
3
Jeffrey Waincymer, ‘Promoting Fairness and Efficiency of Procedures in International Commercial Arbitration
- Identifying Uniform Model Norms’ (2010) 3(1) Contemporary Asia Arbitration Journal 25, 30-32.

1
term ‘exclusionary rules of evidence’ pertains primarily to common law jurisdictions, which
often contain principles that dictate which evidence should and should not be included to the
record.4 By contrast, civil law systems tend not to exclude evidence at an early stage, but rather
attribute lower or higher probative value to different forms of evidence.5

International arbitration follows neither of these systems. Instead, its endemic characteristic is
the broad procedural flexibility that tribunals are vested with, giving them considerable control
over how disputes are resolved.6 The various sources of procedural law in international
arbitration, including the arbitration rules, the lex arbitri and other applicable procedural
principles, have effectively enshrined this flexibility.7 Therefore, on the face of it, arbitration
has no strict rules or principles that determine what evidence should be excluded and when –
no ‘exclusionary rules of evidence’ as such.8

Nonetheless, the practical effect of tribunal discretion is that some evidence can or even ought
to be excluded. This article discusses the circumstances in which exclusion may be justified
and tackles the question of how tribunals can preserve the balance between fairness and
efficiency when faced with such issues. Such an analysis would assist both arbitrators who
must determine the exclusion of evidence, sometimes even sua sponte,9 and the parties who
bear the burden of proof to raise any evidentiary objections.10 This paper argues that the correct
balance may be struck by the application of tribunal duties that, when applied to the individual
circumstances of the case, can restrict and guide the exercise of discretion.

This article will also contribute to building a conceptual framework of the subject. Rules
pertaining to the assessment of evidence in arbitration have particularly suffered from poor
analysis and a lack of structure,11 despite a considerable volume of academic work dissecting
the individual circumstances that may lead to exclusion of evidence.12 This paper, however,
takes a step back and considers the broader circumstances of exclusion of evidence and the
relevant duties of the tribunal rather than attempts to provide a prescriptive and exhaustive
evidentiary test. In doing so, procedural flexibility is preserved while benefiting from guidance
nonetheless.13

4
John A Jolowicz, On Civil Procedure (Cambridge University Press 2000) 214; also see Roderick Munday, Cross
& Tapper on Evidence (13th edn, OUP 2018) 66.
5
Chester Brown, A Common Law of International Adjudication (OUP 2007) 91; for example, in civil law systems
document proof is preferred over oral witness evidence, see Jolowicz (n 4) 214.
6
Queen Mary University of London and White & Case, International Arbitration Survey: Adapting arbitration to
a changing world (2021) 7 <https://arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-
International-Arbitration-Survey-2021_19_WEB.pdf> accessed 25 April 2024.
7
Discussed further infra. See Nathan O’Malley Rules of Evidence in International Arbitration: An Annotated
Guide (2nd edn, Informa law from Routledge 2019) 4-5; Kostiantyn Pilkov ‘Evidence in International Arbitration:
Criteria for Admission and Evaluation’ (2014) 80(2) IJAMDM 147, 147-148.
8
George von Mehren and Claudia Salomon, ‘Submitting Evidence in an International Arbitration: The Common
Lawyer’s Guide’ (2003) 20 JIA 285, 285-286; Mojtaba Kazazi, Burden of Proof and Related Issues: a Study on
Evidence Before International Tribunals (Kluwer Law International, The Hague/London/Boston 1996) 207-208;
Jeffrey Waincymer, Procedure and Evidence in International Arbitration (Kluwer Law International 2012) 797.
9
IBA Rules, Article 9(2) and (3) state that evidence may be excluded at the tribunals’ ‘own motion’.
10
O’Malley (n 7) 336.
11
Bruce McAllister and Amy Bloom, ‘Evidence in Arbitration’ (2003) 34 JMLC 35, 35-36.
12
Such as in relation to exclusion of illegally obtained evidence, privilege or confidentiality, discussed infra.
13
Joseph Raz, ‘The Politics of the Rule of Law’ (2008) 2 Indian Journal of Construction Law 1, 9: arguing that
the rule of law favours ‘avoiding free discretion in favour of guided discretion’.

2
This chapter will adopt the common law terminology of ‘exclusion of evidence’ to connote that
the subject does not pertain solely to admissibility of evidence but also to document disclosure
and even inspections.14 Indeed, issues that arise at these various stages are closely related,15
invoking identical tribunal duties albeit with subtle differences in practice. The issue is an
important one given that, among many other reasons, the majority of international arbitrations
anecdotally turn on facts rather than legal issues.16

In terms of structure, the paper first discusses the range of circumstances in which issues of
evidence exclusion arise in international arbitration. Secondly, it sets out the source of the
difficulty, namely the broad evidentiary discretion vested in tribunals. Finally, turns to the
relevant tribunal duties that should guide tribunals in exercising the said discretion to decide
whether or not to exclude the evidence in the specific circumstances of the case.

B. When can evidence be excluded?

Before considering the relevant duties of the tribunals, it is important to establish the range of
circumstances in which the issue of exclusion of evidence arises. The IBA Rules on the Taking
of Evidence in International Arbitration (IBA Rules) can prove particularly helpful since they
were, after all, designed as a compromise between common and civil law jurisdictions.17 For
that reason, they should address the dichotomy of how legal systems approach the exclusion of
evidence mentioned above. The IBA Rules contain a list of factors that tribunals ‘shall’
consider in relation to admissibility and disclosure of evidence:

1. Relevance and materiality

2. Legal impediment or privilege
3. Unreasonable burden to produce the evidence
4. Loss or destruction of the document
5. Confidentiality
6. Political or institutional sensitivity
7. Procedural economy, proportionality, fairness or equality of the parties.18

Despite this limited guidance, the IBA Rules list the circumstances in which exclusion is
warranted rather than set out a specific evidentiary test for exclusion and the exercise of
tribunals discretion. After all, it would be up to the tribunals to determine whether one of the
above exclusionary rules apply in the circumstances.

14
IBA 28: ‘Articles 9.2 and 9.3 provide the limitations on admissible evidence, whether oral or written. These
limitations also apply to the production of documents pursuant to Article 3 and inspections pursuant to Article 7.’
On the proximity of admissibility and disclosure in international arbitration, see IBA Rules, Article 9(2) on the
exclusion of evidence that relates to both; See also Roman Khodykin, Carol Mulcahy and Nicholas Fletcher, A
Guide to the IBA Rules on the Taking of Evidence in International Arbitration (OUP 2019) 425.
15
O’Malley (n 7) 280.
16
Nigel Blackaby KC, Constantine Partasides KC, and Alan Redfern, Redfern and Hunter on International
Arbitration (OUP 2023) 347; Jan Paulsson and Georgios Petrochilos, UNCITRAL Arbitration (Wolters Kluwer
2018) 236.
17
O’Malley (n 7) 8-9.
18
IBA Rules, Article 9(2).

3
Other sources link rules of exclusion to some of the duties of tribunals, such as due process.19
The difficulty around such division is that the evidence rarely trespasses on a single principle
given that, as will be discussed below, their application far exceeds issues of evidence but
pertain to arbitral procedure as a whole. This paper hence proposes to divide exclusionary rules
of evidence against the circumstances that taint the evidence and put exclusion into question.
In doing so, three principles are proposed:

1. Exclusion of evidence on the grounds of its substance

2. Exclusion of evidence on the grounds of how it was obtained
3. Exclusion of evidence on the grounds of non-compliance with procedural directions of
the tribunal.

The first exclusionary principle, unlike the other two, concerns solely the substance of the
evidence. In fact, most of the aforementioned exclusionary grounds listed in the IBA Rules
relate to it.20 Evidence having little relevance to the case or poor materiality to its outcome is
perhaps the most frequently used exclusionary rule of evidence in practice.21 Privileged and
confidential documents are also a frequent issue that often results in the exclusion of
evidence.22

The second and third principles of exclusion are concerned with procedure and not the
substance of the evidence. Therefore, and secondly, some evidence is excluded solely on the
basis of how it was obtained. Illegal conduct is a textbook example that is often discussed in
doctrinal sources.23 The component hence fits with Article 9(3) of the IBA Rules which allow
tribunals to exclude such evidence. The ground of ‘unreasonable burden to produce the
requested evidence’24 would also fall under this category in the context of document disclosure
and involve considerations of proportionality of the request.25

19
McAllister and Bloom (n 11) 35-36; Waincymer (n 8) 792-797; Frédéric Sourgens, Kabir Duggal, and Ian Laird,
Evidence in International Investment Arbitration (OUP 2018) 237-239; See also domestic practice in Theodore
Perlman, ‘Due Process and the Admissibility of Evidence’ (1951) 64 HLR 1304, 1304.
20
IBA Rules Article 9(2)(a)-(b) and (e)-(g). Interestingly, the IBA Rules in Article 9(2)(d) list ‘loss or destruction
of the Document that has been shown with reasonable likelihood to have occurred’. However, this cannot be an
exclusionary rule of evidence as there is nothing to exclude – the evidence does not exist.
21
For example, see Generica Ltd. v Pharm. Basic, Inc 125 F.3d 1123, 1131; Economy Forms Corporation v The
Government of the Islamic Republic of Iran, Iran United States Claims Tribunal 14.06.1983 – IUSCT Case No.
165; the Ministry of Energy; Dam & Water Works Construction Co. ("Sabir"); Sherkat Sakatemani Mani Sahami
Kass ("Mana"); and Bank Mellat (formerly Bank of Tehran).
22
Bank for International Settlements PCA Case No. 2000-04, 11; Vito G. Gallo v The Government of Canada
PCA Case No. 55798 [49]; see in relation to confidentiality Euroflon Tekniska Produkter AB v Flexiboys I Motala
AB, Swedish Supreme Court Case No. Ö 1590-11.
23
For example, see Aleksander Kalisz, ‘Illegal and Inappropriate Evidence in International Investment Law:
Balancing Admissibility’ 6 (2021) CLR 60, 61-63; Peter Ashford, ‘The Admissibility of Illegally Obtained
Evidence’ 85 (2019) IJAMDM 377, 377-378; Grégoire Bertrou and Sergey Alekhin, ‘The Admissibility of
Unlawfully Obtained Evidence in International Arbitration: Does the End Justify the Means?’ (2018) 4 The Paris
Journal of International Arbitration 11.
24
IBA Rules Article 9(2)(c).
25
O’Malley (n 7) 47; INA Corporation v The Government of the Islamic Republic of Iran, Iran United States
Claims Tribunal, IUSCT Case No. 161 [37]: ‘The Respondent's attempt to excuse its non-compliance with the
Tribunal's Order [to disclose documents] by merely stating that the documents were "voluminous" is not
convincing. The Respondent did not raise this asserted excuse until the hearing, long after the date for submission
of these materials had passed; even then, the Respondent gave no indication of the actual amounts of material
involved or any description of the alleged problems involved which prevented submission of the materials by the
Respondent or their inspection by INA’.

4
The third exclusionary principle of evidence concerns non-compliance of the evidence with
procedural directions of the tribunal. Tribunals may, for example, set hard deadlines for
submitting documents. In the investor-state case of Zeevi Holdings v Bulgaria, the claimant
attempted to introduce new evidence contrary to a procedural order of the tribunal stating that
no further documents shall be admitted to the record. The tribunal subsequently excluded the
new documents.26

Therefore, in an effort to address the lack of systematisation in the area, three categories of
exclusionary rules of evidence can be identified, depending on the circumstances that taint the
evidence:

1. The substance of the evidence excludes it from the record: including circumstances
where nothing was procedurally questionable in relation to the evidence, but rather the
evidence itself was privileged,27 confidential,28 politically sensitive29 or otherwise
should be excluded due to its substance.
2. How the evidence was obtained excludes it from the record: addressing whether the
evidence was obtained inappropriately or not. It stretches from evidence obtained in
breach of ius cogens principles such as torture,30 via evidence obtained through
corruption, to evidence obtained through civil wrongs.31
3. The evidence does not comply with procedural directions of the tribunal:
concerning the phase in which evidence was introduced, such as after the close of
hearing or even moments before the final award.32 Other considerations include non-
compliance with the language requirements or submission of overly voluminous
evidence contrary to tribunal directions.33

These categories of exclusionary rules are not mutually exclusive and can be argued and
analysed in parallel. A recent case before the English courts relating to the setting aside of a
commercial arbitration involving a state, Nigeria v PI&D,34 provides an apt example. In this
case, the USD 11 billion award rendered against Nigeria in favour of PI&D was successfully
challenged on several grounds of fraud and corruption. Among them was the fact that PI&D’s
counsel were being live fed privileged communication between Nigeria and their legal
representatives.35 Although the issue was never put to the arbitral tribunal, it was said that the

26
Zeevi Holdings v The Republic of Bulgaria and the Privatization Agency of Bulgaria Case No. UNC 39/DK (ad
hoc tribunal) [61].
27
The Titan Corporation v Alcatel CIT SA, Svea Court of Appeal, Case No. RH 2005:1 [112-8].
28
Merrill and Ring Forestry L.P. v Canada (ICSID Case No. UNCT/07/1), Decision on Production of Documents
of 18 July 2008 [31].
29
Mobil Oil Iran Inc. and Mobil Sales and Supply Corporation v Government of the Islamic Republic of Iran and
National Iranian Oil Company, IUSCT Case No. 74, Partial Award of 14 July 1987 [162].
30
Wojciech Jasiński, ‘Admissibility of Evidence Obtained by Torture and Inhuman or Degrading Treatment. Does
the European Court of Human Rights Offer a Coherent and Convincing Approach?’ (2021) 29(2) European
Journal of Crime, Criminal Law and Criminal Justice 127; Anne Veronique Schlaepfer and Philippe Bartsch, ‘A
Few Reflections on the Assessment of Evidence by International Arbitrators’ (2010) 3 International Business Law
Journal 211, 214.
31
Methanex Corporation v United States of America (UNCITRAL), Final Award of 3 August 2005 at Part II,
Chapter I [55]: in this case trespass on private property.
32
Fraport AG Frankfurt Airport Services Worldwide v Republic of the Philippines (I) ICSID Case No. ARB/03/25
Annulment Committee (23 December 2010)
[218]-[247].
33
BSG Resources Limited v. Vale S.A. [2019] EWHC 3347 (Comm) [12]-[20].
34
Federal Republic of Nigeria v Process & Industrial Developments Limited [2023] EWHC 2638 (Comm).
35
Ibid [493]-[496].

5
evidence would trespass on the two exclusionary principles mentioned above: substance (due
to the documents being covered by legal privileged) and how the documents were obtained
(through corrupt conduct).

The three principles above are certainly equally relevant to document disclosure/production,
albeit there are some subtle differences. For example, the exclusionary principle relating to
non-compliance with the tribunal’s procedural direction would be less relevant in cases of
document disclosure. After all, at that stage, a party is merely applying for tribunal permission
to request evidence from the opponent that may be simply refused. On the other hand, the
tribunal can prescribe a specific procedure for requesting documents, such as a Redfern
Schedule.36 Other principles would be equally relevant to disclosure.37

Having discussed the three circumstances in which issues of exclusion arise, it is worth turning
to how tribunals should reach a decision in the matter. The starting point is broad evidentiary
discretion.

C. Evidentiary discretion
The applicable laws and rules in international arbitration set out two key principles in relation
to evidence. On the one hand, they afford the tribunals with broad and discretionary procedural
authority. On the other hand, the discretion tends to be limited by the principle of party
autonomy. After all, arbitration is an inherently private dispute resolution process, and the
parties should be able to have a say on how their disputes are resolved.38 Nonetheless, in the
rare event that the parties do exercise their rights to agree upon a procedure, it rarely concerns
the admissibility and disclosure of evidence.39 This space is, therefore, dominated by the
evidentiary discretion of tribunals.

This discretion has many sources. The ICC Rules note broadly that ‘[i]n order to ensure
effective case management, after consulting the parties, the arbitral tribunal shall adopt such
procedural measures as it considers appropriate, (…).’40 The VIAC Rules follow a similar
approach.41 Other leading arbitration rules contain some minimal guidance pertaining to the
scope of discretion. The SCC Rules state, for example, that ‘[t]he admissibility, relevance,
materiality, and weight of evidence shall be for the Arbitral Tribunal to determine.’42 Most

36
Dunkeld International Investment Ltd. v The Government of Belize (Number 1) PCA Case No. 2010-13 [9]:
‘Document production requests submitted to the Tribunal for decision must be in tabular form pursuant to the
model included with this Order as Annexure B. The Parties are encouraged to use the model format throughout
their exchange of requests, objections, and responses’ (emphasis added).
37
Parties tend to raise privilege objections at the document production stage, eg Apotex Holdings Inc. and Apotex
Inc. v United States of America ICSID Case No. ARB(AF)/12/1 Award (5 July 2013).
38
Michael Pryles, ‘Limits to Party Autonomy in Arbitral Procedure’ (2007) 24 JIA 327, 327-328.
39
Charles Chatterjee, ‘The Reality of The Party Autonomy Rule in International Arbitration’ (2003) 20(6) Journal
of International Arbitration 539, 540-542; Patricia Shaughnessy, ‘Dealing with Privileges in Arbitration’ (2007)
51 SSL 451, 459.
40
International Chamber of Commerce Arbitration Rules 2020 (ICC Rules), Article 22(2).
41
Vienna International Arbitral Centre Rules of Arbitration 2021 (VIAC Rules), Article 28(1).
42
Stockholm Chamber of Commerce Arbitration Rules 2023 (SCC Rules), Article 31(1).

6
other arbitration rules contain provisions to a similar effect,43 but none prescribe a formal
procedure or criteria for the inclusion or exclusion of evidence.44

Therefore, arbitration rules leave issues of inclusion or exclusion of evidence to the tribunals,
unless parties agreed otherwise. Procedural discretion is also enshrined through the various
arbitration laws. For example, the English Arbitration Act states that tribunals have discretion
on ‘procedural and evidential matters’ that encompasses questions on ‘the admissibility,
relevance or weight of any material’.45 The Act is also non-exhaustive in listing procedural and
evidential matters’ and hence the discretion inevitably extends to other aspects of evidence
such as document disclosure and inspections.46

Other arbitration laws vest the tribunals with similar broad powers. The German Code of Civil
Procedure states that ‘The arbitral tribunal is empowered to determine the admissibility of
taking evidence, take evidence and assess freely such evidence.’47 Belgium and the Netherlands
contain equivalent provisions, while the principle was consistently upheld by US courts.48 Most
other arbitration laws, including those based on the UNCITRAL Model Law on International
Commercial Arbitration (‘UNCITRAL Model Law’), follow a similar approach, with little
divergence between civil and common law jurisdictions.49

The IBA Rules provide more prescriptive rules on evidence in arbitration, but tend to be treated
as non-binding guidance in the majority of cases.50 The IBA Rules attempt to ‘preserve the
lines of distinction between the rights of the parties and the authority of the arbitral tribunal’.51
They hence make references to the circumstances in which exclusion may or even should be
warranted, but do not set out a prescriptive evidentiary test for doing so, preserving evidentiary
discretion of tribunals.

For the above reasons, tribunals have a general procedural discretion or arbitral autonomy
which extends to their treatment of evidence, including the exclusion of evidence. Although

43
For example, see London Court of International Arbitration Rules 2020 (LCIA Rules), Article 22.1(vi);
Singapore International Arbitration Centre Arbitration Rules 2016 (SIAC Rules), Rule 19.2; Hong Kong
International Arbitration Centre Administered Arbitration Rules 2018 (HKIAC Rules), Article 22.2; Dubai
International Arbitration Centre Arbitration Rules 2022 (DIAC Rules), Article 25.2; American Arbitration
Association Commercial Arbitration Rules 2022 (AAA Rules), Rule 35(b).
44
See conclusions of the International Law Commission in International Law Commission, ‘Evidence Before
International Courts and Tribunals: Report on the work of the sixty-ninth session’ (A/72/10, 2017): ‘The rules of
international courts and tribunals and their constitutive instruments do not address evidence in detail. They make
only a general reference to evidence in the form of timelines and presentation. They do not contain any reference
to the kinds of evidence, presentation, handling, assessment and conclusions to be drawn from the evidence.
Judicial practices of different courts and tribunals have developed rules of evidence that go beyond existing rules
of international courts and tribunals’.
45
English Arbitration Act 1996, sections 34(1) and (2)(f).
46
Robert Merkin and Louis Flannery, Merkin and Flannery on the Arbitration Act 1996 (Routledge 2021) 378.
47
German Code of Civil Procedure (Zivilprozessordnung), section 1042.
48
Khodykin, Mulcahy and Fletcher (n 14) 410-411.
49
For example, see UNCITRAL (United Nations Commission on International Trade Law) Model Law on
International Commercial Arbitration 1985 (as amended in 2006) (Model Law), Articles 19(1)-(2) and 34(1);
French Code of Civil Procedure, Article 1467; Von Mehren and Salomon (n 8) 285-286; cf the Swedish
Arbitration Act, section 25, suggesting evidence can only be excluded on the grounds of manifest irrelevance to
the dispute or the timing at which the evidence is invoked.
50
IBA, ‘The IBA Arbitration Guidelines and Rules Subcommittee’ (2016) 8-9: estimating in the 2016 Report that
although the IBA Rules were considered in 48 per cent of arbitrations, in 80 per cent of these cases the IBA Rules
were referenced by tribunals as guidance only rather than binding.
51
IBA, ‘Rules of Evidence Review Task Force’ (2020) 28.

7
parties can agree to restrict that discretion, they rarely do so. Nonetheless, while discretion
constitutes a starting point to approaching the exclusion of evidence, it is not entirely ad hoc.
Duties of the tribunal play a particularly strong role in guiding the said discretion.

D. Duties of the tribunal and exclusion of evidence

The nature of discretion is such that tribunals can take any approach towards the exclusion of
evidence that they deem appropriate. For example, solely from the standpoint of broad
discretion, an arbitrator may exclude evidence because she personally dislikes the other party
or because she had too little for breakfast that day. Of course, such an arbitrary outcome is
neither fair nor efficient. This is where duties of the tribunal and their sanction come into play
to limit and guide the exercise of evidentiary discretion. Therefore, understanding duties is key
for tribunals to decide issues of exclusion of evidence fairy and efficiently.

Arbitral tribunals are subject to various duties, the source of which is party agreement to
arbitrate itself, application of law as well as ethical obligations.52 Duties also introduce a
sanction. If they are violated, the tribunal could face several consequences:
- Removal of the arbitrator
- Annulment of an award
- Refusal of enforcement
- Direct recourse against the arbitrator for breach of contract or tortious liability
- Impact on reputation and hence any possible future appointments
- No sanction at all.53

Duties play an important role in guiding tribunals in striking the right balance between fairness
and efficiency in arbitral procedure. This section will, therefore, discuss how the key duties
intersect with exclusionary rules of evidence in order to guide tribunal evidentiary discretion.

I. Duty to resolve the dispute

The raison d'etre of international arbitration is the resolution of the dispute.54 The central duty
of the tribunal is, therefore, to complete its mandate and render an arbitral award.55 Unlike the
other duties below that are more concerned with how the tribunal conducts the proceedings,
this duty focuses purely on the result: the resolution of the dispute and the rendering of an
award. Doing so necessitates that tribunals should apply the relevant law to the case and
conduct the proceedings at the determined seat of arbitration.56

This duty has several implications for issues of exclusion of evidence. For example, it provides
that tribunals must conduct the arbitration in the right language, as required by the arbitration

52
Blackaby KC, Partasides KC, and Redfern (n 16) 550-552.
53
Waincymer (n 8) 75: the duty to render an enforceable award has no sanction in its own right.
54
Karl-Heinz Böckstiegel, ‘The Role of the Arbitrators in Investment Treaty Arbitration’ in Albert Jan van den
Berg (ed), International Commercial Arbitration: Important Contemporary Questions (Kluwer Law International
2003) 372: ‘The fundamental duty of the arbitrators is to come to a reasoned decision on the claims put before
them after giving the parties an equal and full opportunity to present their case’.
55
The duty can be deducted from arbitration rules providing hard-edge obligations on tribunals to render an award
within a certain timeframe. For example, see ICC Arbitration Rules, Article 31(1): ‘The time limit within which
the arbitral tribunal must render its final award is six months. (…)’; SCC Arbitration Rules, Article 43: ‘The final
award shall be made no later than six months from the date the case was referred to the Arbitral Tribunal pursuant
to Article 22. (…)’.
56
Allan Philip, ‘The Duties of an Arbitrator’ in Albert Jan van den Bern (ed) Congress Series: Planning Efficient
Proceedings, The Law Applicable in International Arbitration (Kluwer Law International 1996) 68.

8
agreement or otherwise.57 By extension, tribunals should be able to exclude evidence that did
not comply with the language requirement of the dispute and the party proffering the evidence
refuses to provide a translation.58

However, and more importantly, the duty to resolve the dispute implicates that the issued award
must be reasoned, meaning that it should take into account the arguments raised by the
parties.59 If so, a part of this duty must be for arbitrators to uncover the truth and hence to
appreciate evidence to get a full picture of the facts of the case and the relevant law. It would
be impossible, for example, to render a reasoned award by appreciating the law but not the
facts. The resolution of any dispute implicates the application of the former to the latter. On
this basis, the duty to resolve the dispute would typically prompt the tribunal to include
evidence.

Although this aspect of the duty to resolve the dispute has not been addressed in doctrinal
sources at all, it would explain why many arbitral tribunals show a degree of reluctance to any
exclusion of evidence.60 This being said, ‘too zealous [of a] pursuit of evidence can easily
transform institutions designed to resolve conflict into a rationalization and a setting for
possibly even more rancorous conflict’.61 The equation becomes even more complicated once
the other duties are factored in that may prompt tribunals to exclude evidence. The most
important of these is due process.

II. Duty to afford due process

A cardinal principle of international arbitration that deserves specific attention is due process,
which supersedes tribunal discretion and party autonomy.62 In various sources, it is also

57
ibid.
58
Stephan Wilske, ‘Linguistic and Language Issues in International Arbitration – Problems, Pitfalls and Paranoia’
(2016) 9(2) Contemporary Asia Arbitration Journal 159, 186-187; Blow Pack v Windmöller et Hölscher, Paris
Court of Appeal, 2 April 2013, n° 11/18244; see also ICC Case No. 7170 reported in Dominique Hascher,
Collection of Procedural Decisions in ICC Arbitration 1993-1996 (Kluwer Law International 1997) 56: where
the tribunal requested evidence to be translated into English.
59
Andrea Bjorklund and Lukas Vanhonnaeker, ‘The Powers, Duties, and Rights of International Arbitrators’ in
Stefan Kröll, Cambridge Compendium of International Commercial and Investment Arbitration (CUP 2023)
1029.
60
See for example von Mehren and Salomon (n 8) 285-286, 290; Christoph Schreuer et al, The ICSID Convention:
A Commentary (2nd edition, CUP 2009) 666; Tyrone L Holt, ‘Whither Arbitration – What Can Be Done to Improve
Arbitration and Keep out Litigation’s Ill Effects’ (2009) 7(3) DePaul Business & Commercial Law Journal 455,
469-470.
61
Michael Reisman and Eric E Freedman, ‘The Plaintiff’s Dilemma: Illegally Obtained Evidence and
Admissibility in International Adjudication’ (1982) 76 American Journal of International Law 737, 737.
62
Julian Lew, Loukas Mistelis, and Stefan Kroll, Comparative International Commercial Arbitration (Wolters
Kluwer 2003) 95: calling due process one of the ‘magna carta’ principles of international arbitration; John Rawls,
A Theory of Justice (Belknab Press 1972) 239: labelling due process as the cornerstone of any adjudicatory
process.

9
referred to as natural justice,63 procedural fairness64 or the rules of fair trial.65 Others mention
the right to be heard, the so-called principe de la contradiction or equal treatment.66 These
differences reflect the various municipal terminologies, but at the heart of the concept is the
notion that parties should be treated fairly and equally.67 For this reason, it is the duty that plays
the most significant role in determining the exclusion of evidence and its application can point
in different directions. Indeed, both the inclusion and exclusion of evidence can trespass on
this duty in the right circumstances.

Due process, therefore, sets the outer limit to how tribunals can approach evidence through
their discretion. Given the divergence in defining due process and its scope, domestic
arbitration laws provide a necessary reference point for understanding this limit. For example,
the UNCITRAL Model Law does not make an express reference to due process, albeit the
mandatory Article 18 states that tribunals should treat the parties with equality and afford them
the full opportunity to present their case.68

Similar due process obligations are found in non-Model Law jurisdictions. For example, the
English Arbitration Act provides for the general duty of the tribunal in section 33 to ‘act fairly
and impartially as between the parties, giving each party a reasonable opportunity of putting
his case and dealing with that of his opponent’. This has been said to represent the notion of
due process under the Act.69

Despite some differences across jurisdictions, violation of due process represents a ground on
which an award may be set aside.70 The Model Law, for example, specifies that an award may
be set aside if the party making the application furnishes proof that it was unable to present its
case, the procedure was not in accordance with party agreement or contrary to a mandatory
provision of the lex arbitri.71 Many other arbitration laws follow a similar approach to the
Model Law. The English Arbitration Act allows an award to be set aside on the grounds of a
serious irregularity, which includes violations of the aforementioned section 33.72 However,
unlike the Model Law, the threshold for such a challenge to succeed is higher as the court must

63
Frederick Schauer, ‘English Natural Justice and American Due Process: An Analytical Comparison’ (1976) 18
WMLR 47, 47-48: while ‘due process’ origins from the fifth and fourteenth amendments to the US Constitution,
‘natural justice’ is the English law equivalent developed by the courts.
64
Gary Born, International Commercial Arbitration (Wolters Kluwer 2020) 42, Chapter 26: argues in favour of
employing the language of ‘procedural fairness’ in international arbitration since the other concepts have specific
connotations in domestic settings. However, this term also has its origin in domestic law, see Sophie Byron and
Wendy Lacey, ‘Procedural Fairness Generally’ in Mark Tushnet, Thomas Fleiner, and Cheryl Saunders (eds)
Routledge Handbook of Constitutional Law (Routledge 2012) 259-261. This paper hence adopts the terminology
of ‘due process’ as it is prevalent in international arbitration literature.
65
Susanne Knickmeier, ‘Securing a Fair Trial Through Exclusionary Rules: Do Theory and Practice Form a Well-
Balanced Whole’ in Sabine Gless and Thomas Richter (eds) Do Exclusionary Rules Ensure a Fair Trial?
(Springer Open 2019), 329-347.
66
Gabrielle Kaufmann-Kohler, ‘Globalization of Arbitral Procedure’ (2003) 36 VJTL 1313, 1321.
67
Audley Sheppard, ‘Interim ILA Report on Public Policy as a Bar to Enforcement of International Arbitral
Awards’ (2003) 19 AI 217, 239.
68
UNCITRAL Model Law, Articles 18 and 34.
69
Merkin and Flannery (n 46) 697.
70
Blackaby KC, Partasides KC and Redfern (n 16) 541-545. However, courts are concerned with trespasses on
due process and not the correctness of tribunals’ decision: Sonatrach v Statoil Natural Gas [2014] 2 Lloyd's Rep.
252 [11].
71
UNCITRAL Model Law, Articles 34(2)(a)(ii) and (iv).
72
English Arbitration Act 1996, s 68; Lesotho Highlands Development Authority v Impregilo SpA [2005] UKHL
43 [27]: stated that section 68 reflects ‘the internationally accepted view that the Court should be able to correct
serious failures to comply with the “due process” of arbitral proceedings; cf art 34 of the Model Law.’

10
consider that the irregularity was ‘serious’ and affected the tribunal, the proceedings or the
award.73 Despite some differences, there is a significant degree of convergence between
jurisdictions.74

Principles of due process can also be distilled from the New York Convention and the grounds
on which courts can refuse to enforce a foreign arbitral award. These grounds include a party
not being afforded the right to be heard or being properly put on notice, the arbitral procedure
being contrary to party agreement, and the award being contrary to public policy of the state of
enforcement.75

Although the domestic sources of due process contain key differences regarding the necessary
threshold or extent to which due process considerations can lead to the award being set aside,
the general principle remains.76 An award, therefore, may be challenged on the grounds of lack
of due process which essentially functions as a limit to the exercise of tribunal discretion and
party autonomy in the area of evidence.77 Having established that due process and its various
iterations appear in most if not all domestic arbitration laws and the New York Convention, it
is worth discussing how the inclusion or exclusion of evidence can trespass on this duty and its
various manifestations.

The right to be heard is the first and perhaps most significant element of due process from the
standpoint of evidence exclusion. It will come into focus particularly if the opponent makes
objections to the inclusion of evidence. If tribunals do not discuss the objections but admit the
said evidence outright, it could be perceived as a failure to afford the party its right to be
heard.78 Conversely, a decision to exclude evidence could amount to denying the party its ‘due
opportunity to present proofs and arguments’.79

The right to be heard also underpins tribunal control over the procedural timetable. Evidence
that is introduced late and subsequently excluded by the tribunals would typically not amount
to a breach of due process,80 nor must the tribunal afford a party indefinite opportunities to

73
ibid s 68(3): see also Swedish Arbitration Act 1999, s 34 that allows awards to be challenged on grounds of an
irregularity in the course of proceedings if it ‘probably influenced the outcome of the case’.
74
See on the possible emergence of ‘international due process’: Charles Kotuby, ‘General Principles of Law,
International Due Process, and the Modern Role of Private International Law’ 23 (2013) DJCIL 411, 424-433.
75
Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention),
Articles V(1)(b), (d) and V(2) respectively; these reflect the various notions of ‘due process’ precent across
jurisdictions: Christian Borris et al., ‘New York Convention, Article V [Grounds for Refusal of Recognition and
Enforcement of Arbitral Awards]' in Reinmar Wolff (ed), New York Convention: Article-by-Article Commentary
(2nd edn, Verlag C.H. Beck 2019) paras 128-195.
76
Blackaby KC, Partasides KC, and Redfern (n 16) 542.
77
Franco Ferrari, Friedrich Rosenfeld and Dietmar Czernich, Due Process as a Limit to Discretion in International
Commercial Arbitration (Wolters Kluwer 2020) 1-2; Patricia Shaughnessy, ‘Dealing with Privileges in
Arbitration’ (2007) 51 SSL 451, 460; Albert van den Berg and Jan Fortier, The Minimum Requirements of Due
Process in Taking Measures Against Dilatory Tactics: Arbitral Discretion in International Commercial
Arbitration – A Few Plain Rules and a Few Strong Instincts (Wolters Kluwer 1999) 399.
78
For example, see Netherlands Supreme Court 08.11.1963 – NJ 1964/139 – De Jong/Quaade HR; Enron
Creditors Recovery Corporation (formerly Enron Corporation) and Ponderosa Assets, L.P. v Argentine ICSID
Case No. ARB/01/3 Award (30 July 2010) [192].
79
Tempo Shain Corp. v Bertek Inc 120 US 16, 17-21 (1997); see also Fraport (n 32) 185; Tracey Frisch, ‘Death
by Discovery, Delay and Disempowerment: Legal Authority for Arbitrators to Provide a Cost-Effective and
Expeditious Process’ 17 (2015) CJCR 155, 162-165.
80
For example, see in relation to late-filed requests to hear new witnesses in a Court of Arbitration for Sport
proceedings: X v Jamaican Football Federation and FIFA (20 July 2011) Swiss Federal Supreme Court.

11
respond.81 For example, the English court held that the exclusion of a 2,000-page document
three months after the hearing did not amount to a violation of due process.82 The tribunals
acting contrary to their own procedural directions in order to include new evidence might,
however, trespass on the duty. In the Fraport v Philippines investment arbitration, a party
applied to introduce new evidence after the close of the hearing, which the tribunal admitted.
The Decision on Annulment found that this decision breached due process as it restricted the
opponent’s right to be heard and respond to the new evidence.83 Nonetheless, if the evidence
was only uncovered after the expiration of the deadline, due process may require the opposite.84

Outright rejection of evidence that is relevant and material might also, without a good reason,
amount to tribunal’s failure to consider party submissions and hence trespass on the right to be
heard.85 Equally, admitting evidence without giving the opponent the opportunity to produce
counterevidence could also fall short of the duty.86 On the other hand, tribunals retain a
considerable degree of discretion. Determinations of what is relevant and material, as well as
decisions on admissibility and disclosure are a prerogative of the tribunal and, without more
such as perhaps outright arbitrariness, would not trespass on the right to be heard.87

Secondly, due process encompasses the principle of equality of arms, also called the principle
of equal treatment. While the right to be heard above is concerned with the mere opportunity
to make submissions, the principle of equal treatment connotes a certain adequacy of that
opportunity.88 The investor-state tribunal in Tulip Real Estate v Turkey89 stated that a party
must not be under conditions that place it at a substantial disadvantage vis-à-vis the opponent.90
For example, allowing one party to produce evidence but not the other could trespass on

81
Pacific China Holdings Ltd (In Liquidation) v Grand Pacific Holdings Ltd [2012] 4 HKLRD [77]; Allianz
General Insurance Company Malaysia Berhad v Virginia Surety Company Labuan Branch WA-24NCC(ARB)-
13-03/2018 [31]-[36]: ‘A tribunal is not obliged to slavishly adopt the position of parties but instead it is allowed
to pick and choose the arguments it deems necessary for its consideration’.
82
BSG Resources Limited v. Vale S.A. [2019] EWHC 3347 (Comm) [12]-[20].
83
Fraport (n 32) [218]-[247].
84
For example, see Paris Court of Appeal where such allegations was raised albeit they failed in defeating the
award: Paris Court of Appeal 30.06.1988 – Revue de l’arbitrage (1991) 345.
85
BGH (1985) BGHZ 96, 40; Hoteles Condado Beach, La Concha & Convention Center v Union De Tronquistas
Local US District Court 901: ‘The exclusion by an arbitrator of evidence central and decisive to a party's position,
so affects the fairness of the proceeding as a whole, that such action must be considered arbitrary, unreasonable,
incomplete, improper and capricious. Accordingly, we conclude that the conduct described above is so destructive
of plaintiff's right to present his case, that it warrants the setting aside of the arbitration award.’ Reasoning was
upheld on appeal in Hoteles Condado Beach, La Concha & Convention Center v Union De Tronquistas Local US
(1985, CA) 901.
86
Fraport (n 32) [200]: ‘The right to present one‘s case, or “principe de la contradiction”, in arbitral proceedings
includes the right of each party to make submissions on evidence presented by its opponent.’; Rice Trading
(Guyana) Ltd v Nidera Handelscompagnie BV, Hague Court of Appeal 1998, 731.
87
Ferrari, Rosenfeld and Czernich (n 77) 7.
88
For example, see UNCITRAL Model Law, Article 18: ‘The parties shall be treated with equality and each party
shall be given a full opportunity of presenting his case’ where the right to be heard and equality of arms are
mentioned in parallel; United Nations Human Rights Committee 23.07.2007 – Comm. No. 1347/2005 para. 7.4 –
Dudko v Australia: ‘The right to equality before courts and tribunals also ensures equality of arms. This means
that the same procedural rights are to be provided to all the parties unless distinctions are based on law and can
be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the
defendant.’
89
Tulip Real Estate and Development Netherlands B.V. v Republic of Turkey ICSID Case No. ARB/11/28,
Annulment Committee (30 December 2015).
90
ibid [33].

12
equality of arms (as well as right to be heard).91 It has also been suggested that tribunals should
not uncritically accept the evidence of a party in the face of objections as to its credibility.92

Equality of arms also implies that parties have a general duty not to obtain evidence through
improper means.93 Although due process provides for equal treatment, it does not require that
the parties should be treated identically. The circumstances of the parties not being
‘comparable’ typically suffice to avoid a successful equality of arms challenge.94

The third due process principle relevant to the subject is the duty of tribunals to afford the
parties sufficient notice.95 This element is concerned with the parties being kept informed of
procedural developments in the arbitration such as the submission of new documents by their
opponent.96 Albeit it does not directly relate to exclusion of evidence, it often concerns the
surrounding circumstances in which parties introduce the said evidence.

Due to the severe consequences of the lack of due process, it is easy to see why some tribunals
might experience ‘due process paranoia’. Its consequence is to reduce the exercise of tribunal
procedural discretion to a minimum.97 This, in turn, leaves scope for parties to raise
unmeritorious due process objections in an effort to influence the tribunal to their advantage.98
The problem is aggravated given that oftentimes the line between complying and falling short
of due process is subtle.

However, there is a silver lining. The above examples of due process violations suggest that
demonstrating tribunal engagement with party submissions, and the overall avoidance of
arbitrariness, could suffice to satisfy due process. Due process, after all, is an obligation of
conduct and not of result. What domestic courts search for in set aside proceedings is the
engagement of tribunals with the arguments put to them by the parties.99 This suggests that, if
the tribunals show engagement with the evidentiary objections or requests for inclusion of
evidence, they will stay well within the boundaries of due process. The wide scope of
evidentiary discretion is still largely intact.

Although the fear of due process is very much a storm in a teacup, it is plain to see why many
tribunals view admitting virtually all evidence to the record as the less risky approach.
However, this is nothing more than an extension of the due process paranoia problem and can

91
CBS v CBP Singapore Court of Appeal 2021 – SGCA 4, Civil Appeal No. 30 of 2020 [61]; Swiss Federal
Supreme Court 26.04.2016 – BGE 142 III 360 [4.1.1]; Central European Aluminium Company (CEAC) v
Montenegro ICSID Case No. ARB/14/8 Annulment Committee (1 May 2018) [110].
92
See Interprods Ltd v De La Rue International Ltd EWHC 68 (Comm) [41]: although this allegation did not
succeed since the tribunal was fund to have appreciated the issue.
93
OOO Manolium-Processing v Belarus PCA Case No. 2018-0 [159]-[160].
94
Ferrari, Rosenfeld, and Czernich (n 77) 11; Paris Court of Appeal 02.04.2019 – Rev. Arb. 304 – Ryan v
République de Pologne: ‘Equality of arms implies the obligation to provide each party with a reasonable
opportunity to present its case – including evidence – in conditions that do not place a party in a substantially
disadvantageous position compared to its opponent’.
95
CDX and another v. CDZ and another [2020] SGHC 257 [34].
96
Lenmorniiproekt OAO v Arne Larsson & Partner Leasing Aktiebolag Swedish Supreme Court Case No. Ö 13-
09; Lebanon Court of Cassation, 5th Chamber 29.10.2002 – Case No. 132.
97
Klaus Berger and Ole Jensen, ‘Due process paranoia and the procedural judgment rule: a safe harbour for
procedural management decisions by international arbitrators’ 32 (2016) AI 415, 415-416.
98
Ferrari, Rosenfeld and Czernich (n 77) 1-2; Lucy Reed, ‘Ab(use) of due process: sword vs shield’ 33 (2017) AI
361, 364-5; Berger and Jensen (n 97) 415-416.
99
For example, see Shin-Etsu Chem. v Xinmao Science [2008] Min Si Ta Zi No. 18; LKSur S.A v Fichtner GmbH
& Co. KG Paris Court of Appeal Case No. 08/16276.

13
cause injustice to parties where exclusion is warranted. Instead, this paper proposes that the
due process paranoia can be addressed if tribunals follow their other duties as well and exercise
the discretion that they are vested with.

III. Duty to conduct the procedure efficiently and economically

More evidence inevitably means more work for the tribunal, the parties and the arbitral
institutions, who are often committed to strict deadlines and a tight procedural calendar. This
translates to increased costs and delays. An important duty that guides tribunals in excluding
evidence is hence ensuring procedural efficiency and economy. It has many sources, including
some of the leading lex arbitri and arbitration rules, which consider it a ‘general’ duty of the
tribunal.100 It consists of two limbs: the avoidance of unnecessary delay, connoting the need
for haste in resolving disputes, and factoring in cost-effectiveness.101 The principle is
significant and has been treated by some authorities as an iteration of due process.102 After all,
a procedure that is grossly inefficient can be viewed as depriving the parties of their right to be
heard. The overlap between the two principles might hence be a question of scope and practical
effect.

Nonetheless, procedural efficiency and economy certainly affect the exclusion of evidence in
their own right. Many arbitration laws attribute special importance to the principle. The English
Arbitration Act103and the Swedish Arbitration Act104 are two examples, expressly connecting
procedural economy with the exercise of tribunal discretion. Indeed, without a duty to conduct
the procedure efficiently and economically, one of the key advantages of arbitration and dispute
resolution would be lost.105

The possible sanction for tribunals falling short of their duty of efficiency and economy lies in
targeting the tribunal personally, subject to the laws on immunity. For instance, a forfeiture of
remuneration is one possible avenue permissible under some arbitration rules. The ICC, for
example, envisages a forfeiture of arbitrators’ fees if the award is rendered after the deadline
prescribed by the arbitration rules.106 Several arbitration laws also envisage the removal of the
arbitrator in cases of undue delay.107 Principles on expediency would be inevitably violated if
the tribunal indefinitely allowed parties to introduce new evidence and hence delay the
proceedings.
100
For example, see English Arbitration Act 1996, section 33(1)(b): ‘The tribunal shall— (…) adopt procedures
suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair
means for the resolution of the matters falling to be determined.’; LCIA Rules, Article 14.1(ii): ‘[the tribunal has]
a duty to adopt procedures suitable to the circumstances of the arbitration, avoiding unnecessary delay and
expense, so as to provide a fair, efficient and expeditious means for the final resolution of the parties' dispute’.
101
Nadia Darwzeh, ‘Is Efficiency an Arbitrator’s Duty or Simply a Character Trait?’ in Patricia Shaughnessy and
Sherlin Tung (eds) The Powers and Duties of an Arbitrator (Wolters Kluwer 2017) 58-60.
102
For example, see various approaches considered in Kaufmann-Kohler (n 41) 1321.
103
English Arbitration Act 1996, section 1(a): ‘[T]he object of arbitration is to obtain the fair resolution of disputes
by an impartial tribunal without unnecessary delay or expense (…)’.
104
Swedish Arbitration Act 1999, Article 21: ‘The arbitrators shall handle the dispute in an impartial, practical,
and speedy manner’.
105
Queen Mary University of London and White & Case (n 6) 8.
106
ICC, ‘Bulletin: New Policies and Practices at ICC: Towards Greater Efficiency and Transparency in
International Arbitration’ (ICC 2016).
107
Norwegian Arbitration Act 2004, section 16: ‘If an arbitrator becomes de jure or de facto unable to perform
his functions or if an arbitrator for other reasons fails to act without undue delay, his mandate shall terminate if
he withdraws from his office or if the parties agree on the termination. Otherwise, any party may ask the courts
to decide by way of interlocutory order whether the mandate shall terminate for one of the said reasons.’ See also
similar provisions in the Swedish Arbitration Act, section 17; Polish Code of Civil Procedure, Article 1177(2);
German ZPO, section 1038(1); UNCITRAL Model Law, Article 14(1).

14
In this context, the line between violating the duty to conduct the procedure efficiently and
economically, and the duty to afford due process is blurred. An arbitrator’s pursuit of efficiency
can be easily argued by a party to trespass on due process and in particular the right to be heard.
For instance, that party may seek to introduce last-minute evidence. Although the tribunal could
include such evidence and revisit the procedural timetable in an effort to ensure the opponent’s
opportunity to respond, it is clear that due process does not require the tribunal to afford the
parties endless opportunities to respond.108 The solution must hence be a balancing exercise,
weighing the circumstances of the case, resulting in the tribunal to use their discretion to
determine the appropriate course of action.

The rationale of procedural economy and efficiency dictates perhaps the most common
exclusionary rule of evidence – the evidence lacking relevance to the case or having negligible
materiality to the outcome of the case.109 This is perhaps the most common reason for
documents to be excluded.110 It is a general element present in the IBA Rules111 as well as
many of the domestic laws and arbitration rules mentioned above.

IV. Duty of independence and impartiality

An auxiliary duty that is often alleged in combination with violation of the due process right to
be heard or equality of arms, is impartiality and independence of arbitrators,112 although some
authorities treat it as a manifestation of due process as well.113

Impartiality and independence are invoked since decisions to include or exclude evidence are
typically prejudicial to one party. Therefore, it is not uncommon for that party to challenge the
award on grounds of actual or apparent bias. In analysing such a challenge, domestic courts
would look for the rationale behind the tribunal decision. Following a principled approach to
exclusion of evidence that treats parties equally allows to mitigate the risk of such allegations
succeeding.114 Therefore, in the context of evidence, the observance of the right to be heard
and equality of arms would in most cases suffice to defend against allegations of lack of
impartiality or independence.

108
Paris Court of Appeal, 23.06.2015 – n° 14/14277, Rev. Arb. (2015) p. 961 – Mme Sergent c/ SCA Coopérative
Agricole Agraly: stating that documents submitted after the deadline under the procedural timetable could be
excluded; BSG Resources Limited v. Vale S.A. [2019] EWHC 3347 (Comm) [12]-[20], Filip De Ly, David A.R.
Williams, Michael Hwang: documents submitted three weeks after the hearing were excluded, which did not
amount to a violation of due process under the English Arbitration Act 1996.
109
Bernarn Hanotiau, ‘Document Production in International Arbitration: A Tentative Definition of 'Best
Practices'’ in Bernard Honatiau (ed) Special Supplement 2006: Document Production in International Arbitration
(France 2006) 117.
110
Rosenweig v Morgan Stanley US (2007) CA 1328.
111
IBA Rules, Articles 9.1 and 9.2(a).
112
Matti Kurkela and Santtu Turunen, Due Process in International Commercial Arbitration (OUP 2010) 111;
Ronán Feehily, ‘Neutrality, Independence and Impartiality in International Commercial Arbitration, a Fine
Balance in the Quest for Arbitral Justice’ 7 (2019) PSJLIA 88, 105-106.
113
For example, see Dominique Hascher, ‘Independence and Impartiality of Arbitrators: 3 Issues’ 27 (2012)
AUILR 789, 789 noting that independence and impartiality is derived from the arbitrators’ ‘essential obligations
towards the parties’.
114
For example, see ABB AG v Hochtief Airport GmbH EWHC 388 (Comm); Euroflon Tekniska Produkter AB v
Flexiboys I Motala AB Swedish Supreme Court Case No. Ö 1590-11.

15
If the tribunal is found to be biased, the sanction is not just the challenges to the arbitral award,
but also a possible sanction against them personally such as a reduction in fees or even personal
liability.115 They may also be removed in such circumstances.116

V. Duty to render an enforceable award?

While various arbitration rules make a reference to the duty to render an enforceable award,117
it is not stand-alone. Rather, it is a corollary of the other duties, such as the duty to afford due
process or impartiality and independence.118 For that reason, there are no consequences for
tribunals falling short of this duty per se. Nonetheless, many authorities recognise it as separate,
albeit its precise scope is subject to ongoing debate.119 The possible explanation is that, given
the aforementioned evidentiary discretion of tribunals, whether or not the award will be tainted
by an incorrect exercise of discretion will be a question of scope in the circumstances. For
example, if the tribunal violated due process by excluding evidence which subsequently results
in a successful challenge to the award, the duty to render an enforceable award would also
undermined.

There is no reason, however, for the duty not to extend to set aside proceedings as well.120
Tribunals should arguably be aware of any mandatory laws of the seat, including its public
policy, that may result in challenges to the award. If so, the reference to ‘enforceability’ is
inaccurate and the duty should also (or only) relate to set aside proceedings. After all,
arbitrators typically cannot foresee where the parties will enforce the award, although
sometimes they can if, for example, they know of significant assets of one party in a specific
jurisdiction.121 Furthermore, international public policy is also a concept that applies
universally. The duty to render an enforceable award could hence be an iteration of the duty
to observe international public policy, which has been often cited in the context of tackling
corruption.122 Therefore, for instance, arbitrators might rely on this duty to exclude evidence if
it offends international public policy.
115
Born (n 64) §13.05.
116
For example, see section 24(1)(a) of the English Arbitration Act 1996. If the arbitrator’s conduct suggest she
has ‘a mind that is closed to the consideration and weighing of relevant factors’, she could be removed: Jackson
v Thompson [2015] EWHC 218 [15]; See recent judgment of the English High Court where an arbitrator was
removed for including expert witness evidence to the record but without the witness appearing at the hearing for
cross-examination: H1 & Anor v W & Ors [2024] EWHC 382 (Comm).
117
For example, see ICC Rules, Article 42: ‘In all matters not expressly provided for in the Rules, the Court and
the arbitral tribunal shall act in the spirit of the Rules and shall make every effort to make sure that the award is
enforceable at law.’; LCIA Rules, Article 32.2: ‘For all matters not expressly provided in the Arbitration
Agreement, the LCIA, the LCIA Court, the Registrar, the Arbitral Tribunal, any tribunal secretary and each of the
parties shall act at all times in good faith, respecting the spirit of the Arbitration Agreement, and shall make every
reasonable effort to ensure that any award is legally recognised and enforceable at the arbitral seat.’
118
Andrea Bjorklund and Lukas Vanhonnaeker, ‘The Powers, Duties, and Rights of International Arbitrators’ in
Stefan Kröll, Cambridge Compendium of International Commercial and Investment Arbitration (Cambridge
University Press 2023) 1035.
119
Gunther Horvath, ‘The Duty of the Tribunal to Render an Enforceable Award’ (2001) 18 JIA 135, 135; Julian
Lew, ‘The Law Applicable to the Form and Substance of the Arbitration Clause’ in Van den Berg (ed) Improving
the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention
(Kluwer Law International 1999) 114-115; Sigvard Jarvin, ‘The sources and limits of the arbitrator's powers’
(1986) 2(2) Arbitration International 140, 162.
120
Waincymer (n 8) 102.
121
ibid 101.
122
Bernardo Cremades and David Cairns, ‘Transnational Public Policy in International Arbitral Decision Making:
the Cases of Bribery, Money Laundering and Fraud’ in Kristine Karsten and Andrew Berkeley (eds) Dossier of
the ICC Institute of World Business Law: Arbitration-Money Laundering, Corruption and Fraud, ICC Publication
(Paris 2003) 65, 79; Michael Hwang and Kevin Lim, ‘Corruption in Arbitration – Law and Reality’ 8 (2012) AI
1, 14.

16
For this reason, although the duty to render an award that is not subject to set aside/enforceable
has bearing on the exclusion of evidence, it is auxiliary to the other duties. Nonetheless, it
serves to remind tribunals of the outer boundaries of their evidentiary discretion.

E. Conclusions
Arbitral tribunals tend to exclude evidence on the basis of (1) the substance of the evidence,
(2) how it was obtained and (3) non-compliance with procedural directions of the tribunal. This
being said, the exclusion of evidence represents one of the most difficult issues that an arbitral
tribunal can be faced with from the angle of striking the right balance between fairness and
efficiency – the underlying policy objectives of international arbitration.

Tribunals have a broad evidentiary discretion albeit that discretion is not limitless, but is also
poorly guided by arbitration practice. In resolving the issue, tribunals should consider the
unique circumstances of the case and factor in their duties, which guide them whether or not to
include or exclude evidence. These duties are:

- Duty to resolve the dispute which prompts tribunals to uncover the truth
- Duty to afford due process and its various manifestations such as the right to be heard
and equality of arms
- Duty to conduct the procedure efficiently and with expediency, which may in particular
prompt tribunals to exclude evidence that would delay justice
- Duty to remain independent and impartial that may be invoked if parties are treated
unequally
- Duty to render an enforceable award or, at the very least, an award that is not subject to
set aside.

This paper hence argued that tribunals should consider the above duties in the circumstances
of the case to guide their exercise of evidentiary discretion to include or exclude evidence.

17