“Obtaining Evidence from Third Parties in International Arbitration” Vol. 17 No. 2 Arbitration International (2001)

As international arbitration evolves it is subject to several basic challenges. One of the foremost is to provide an adequate forum for dispute resolution while remaining cost-effective. To be adequate, tribunals should have access to evidence held by third parties, as is provided for in limited fashion in the FAA, the English Arbitration Act 1996 and the 1999 IBA Rules of Evidence. To return to the examples from the recent cases, the following principles emerge:
(1) in a construction arbitration, it appears that a sub subcontractor would obtain a copy of a contract between the subcontractor and the main contractor at the time of the evidentiary hearings (Vibroflotation);
(2) in a construction arbitration, a contractor was not entitled to obtain substantial documentation from the institute that would use the facility when such documents were apparently available from other sources and compliance with the request would have been unduly burdensome (Comsat)
(3) In a shipping arbitration, a charterer was entitled to inspect the ship to determine the cause of a failure to meet the requirements of the charter, although there is no confirmation that the arbitrator held the evidence to be admissible (MV ‘Allegra);
(4) in a shipping arbitration, the charterer with a dispute with the owner was not entitled to obtain a broad range of documents from the P & I Club. That was considered an abuse of process (The ‘Lorenzo Halcoussi’);
(5) in an arbitration between insurance syndicates, one syndicate was entitled to obtain a copy of a specific document (a cover note) and the attendance of a broker on a specific date but not throughout the arbitration (Wakefield v. Outhwaite);
(6) in a rent review arbitration, one party was entitled to obtain copies of proofs of evidence given by the other party’s expert in other matters relating to property in the same area of London, but not in relation to other properties (London & Leeds).
In terms of the three basic issues mentioned in Part I supra: first, it is clear that both English and American law provide assistance in obtaining specific third party evidence where such evidence is relevant, is not otherwise available and can be obtained without unduly burdening the third party. French law does not provide such support for witness testimony at all or for other evidence directly. Secondly, under English law, and in some circumstances US law, the fact that the seat of the arbitration is elsewhere will not preclude such assistance. Thirdly, it should be up to the arbitral tribunal to define and provide the procedure for the third party evidence. The IBA Rules of Evidence provide useful criteria and could provide the basis for a procedure for obtaining such evidence to render obtaining third party evidence more effective in international arbitration. That would in turn limit one of the perceived disadvantages of arbitration. “