Dear all,

In this assessed forum it shall be discussed whether the evidentiary rules which apply in international
commercial arbitration follow the rules of evidence applicable in common law or the rules in civil law
systems. The legal construct of evidence is neither universal nor static, there is no technique to proof
and evidence that is commonly followed by all legal systems of the world. 1
Let’s first consider the rules of evidence mainly applicable in common law countries. In most
common law countries’ court procedures, the parties almost bear the full power to collect,
administer and present evidence. The role of the judge is that of a referee as he administers the
relevant rules of evidence and provides a final decision which of the parties has won the argument. It
is the task of the judges to listen to the evidence and question the witnesses. Nevertheless, the
judges in common law systems let the parties present their cases and will finally make their judgment
referring to the facts the parties presented to the court. This system is called “adversarial system”. 2
To the contrary, in the courts of most civil law countries, the judges are provided with much more
power to administer the evidence. They participate more actively in collecting the evidence, which
includes the examination of the witnesses. 3 This system is referred to as the “inquisitorial system”. 4
Which approach follows the international arbitration? Article 25 of the ICC arbitration rules 5 borrows
elements from both systems:
In part 1 of article 25 ICC arbitration rules it is stated that “The arbitral tribunal shall proceed within
as short a time as possible to establish the facts of the case by all appropriate means.” By stating that
the arbitral tribunal needs to establish the facts of the case, the ICC rules make reference to the
“inquisitorial system”. On the other hand, in part 2 of this article, the following is stated: “After
studying the written submissions of the parties and all documents relied upon, the arbitral tribunal
shall hear the parties together in person if any of them so requests or, failing such a request, it may of
its own motion decide to hear them.” By stating that the parties shall present their cases, the article
refers to the “adversarial system”. Hence, the ICC rules of arbitration have blended both approaches
and at least in respect to those arbitration rules, it cannot be stated that only either the common law
or the civil law rules are followed.

1
Ho, Hock Lai, "The Legal Concept of Evidence", The Stanford Encyclopedia of Philosophy (Winter 2015 Edition),
Edward N. Zalta (ed.), URL = https://plato.stanford.edu/archives/win2015/entries/evidence-legal/, accessed on
October 2, 2020.
2
Nigel Blackaby; Constantine Partasides; Alan Redfern; Martin Hunter; Alan Redfern Redfern and Hunter on
international arbitration, 2015, Oxford University Press, p.11
3
Blackaby; Partasides; Alan Redfern; Hunter; Redfern, p.11
4
in Lillich (ed.) Fact-Finding before International Tribunals: Eleventh Sokol Colloquium (Transnational, 1991), pp.
106–110
5
2017 Arbitration Rules by the International Chamber of Commerce (ICC)