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Journal of Maritime Law & Commerce, Vol. 34, No. 1, January, 2003

Evidence in Arbitration

Bruce A. McAllister* and Amy Bloom**

I
INTRODUCTION
To say "There are no rules of evidence in arbitration" is not only incor-
rect, it is self-contradictory. Taken literally, the statement would express a
rule, an elaborated version of which might be stated as: "Arbitrators have the
power to accept or reject any evidence that is offered." We all know that such
an absolute formulation is wrong. Arbitrators have a duty to provide a fair
hearing, which necessarily requires that arbitrators receive and consider
such relevant and material evidence as is appropriately offered.
It might be said that arbitrators have the power to accept any and all evi-
dence offered, even over the objection of a party. There are limits to the
power of arbitrators to accept evidence, however, and we shall discuss some
of these.
Beyond the limits of the sheer power of arbitrators, there are, with respect
to evidentiary issues, prudential guidelines by which arbitrators achieve
fairness and efficiency, the goals underpinning the arbitration process. An
informed understanding of these prudential guidelines is essential to success
in the arbitral process.
This paper discusses rules of evidence in arbitrations held in the United
States, or where the law of the United States is specifically agreed to control
the procedures of the arbitration (as opposed to the merits of the dispute).'
Generally speaking, the law governing arbitral procedures, including the
admission of evidence, is the law of the place where arbitration occurs?

*Of Counsel, Alley, Maass, Rogers & Lindsay, P.A (Palm Beach) B.A., College of the Holy Cross;
LL.B. Harvard University. Member of the Editorial Board of the Journal of Maritime Law and
Commerce.
**Associate, Steel Hector & Davis (West Palm Beach). B.A., Vanderbilt University; J.D., Nova
Southeastern University.
'While beyond the scope of this paper, the treatment of evidence (and other) issues in arbitration and
review of that treatment by English courts is the subject of a recent, and typically whimsically titled, arti-
cle. See Stewart R. Shackleton, Global Warming: Milder Still in England: Part 2, [1999] Int'l. Arb. L.
Rev. 2 (4), 117-36.
2
See, e.g., Splosna Plovba of Piran v. Agrelak S.S. Corp., 381 F. Supp. 1368, 1370, 1975 AMC 146,
148 (S.D.N.Y. 1973) (citing Restatement (Second) of Conflicts § 220 (1969)).
36 Journalof Maritime Law & Commerce Vol. 34, No. 1

Following, then, are discussions of the specific limits on arbitrators' power

concerning admission and rejection of evidence, and of the more detailed
prudential guidelines on evidence, evolved over hundreds of years of litiga-
tion and adapted over the last three quarters of a century to arbitration.

II
RELEVANCE AND MATERIALITY

We take up these issues first because the only mention of evidence in the
Federal Arbitration Act is in section 10(c), where the Act states that an award
may be vacated where arbitrators refused "to hear evidence pertinent and
material to the controversy." Implied in the Act, therefore, is the proposition
that irrelevant and immaterial evidence may be rejected. In practice, that is
usually the better course.
To too many arbitrators, however, section 10(c) has meant one thing: let
everything remotely relevant in, no matter how prejudicial, cumulative,
incredible, suspect or otherwise useless, for fear that ruling out anything
may lead to vacatur. This is surely a mistake, at the expense of efficiency and
even, in some cases, fairness.
Section 10(c) makes it clear, to the contrary, that arbitrators may reject
any evidence that is not pertinent or material. The decisions overwhelming-
ly support the proposition that "the arbitrator is the judge of the relevance
and admissibility of evidence introduced in an arbitration proceeding." '3
It is also clear that arbitrators have the power to reject evidence that is rel-
evant and material under certain circumstances. In Terk Technologies Corp.
v. Dockery,4 the court upheld an award where the hearings had taken five
3
Castleman v. AFC Enterprises, Inc., 995 F. Supp. 649, 653 (N.D. Tex. 1997). See, e.g., Robbins v.
Day, 954 F.2d 679,685 (11th Cir. 1992); Forsythe Int'l SA v. Gibbs Oil Co., 915 F.2d 1017 (5th Cir. 1990)
(misconduct by counsel in stone-walling discovery not basis for overturning award); Sunshine Mining Co.
v. United Steelworkers, 823 F.2d 1289 (9th Cir. 1987); Legion Ins. Co. v. Ins. Gen. Agency, Inc., 822 F.2d
541, 543 (5th Cir. 1987) (arbitration requires "expeditious and summary hearing, with only restricted
inquiry into factual issues"); Grahams Service, Inc. v. Teamsters Local 975, 700 F.2d 420 (8th Cir. 1982)
(exclusion of evidence not improper); Bell Aerospace Co. v. Local 516, 500 F.2d 921 (2d Cir. 1974)
(exclusion of affidavit not improper); Reed & Martin, Inc. v. Westinghouse Elec. Corp., 439 F.2d 1268 (2d
Cir. 1971); Newark Stereotypers Union No. 18 v. Newark Morning Ledger Co., 397 F.2d 594, 599 (3d Cir.)
(refusal to investigate witnesses' refusal to testify not improper); Warth Line, Ltd. v. Merinda Marine Co.,
778 F Supp. 158, 1992 AMC 1406 (S.D.N.Y 1991) Essex Cement Co. v. Italmare SpA, 763 F. Supp. 55,
1991 AMC 2406 (S.D.N.Y. 1991); Ohio Center for Dance Columbus Festival Ballet v. BLO Prod., Inc.,
760 F Supp. 677 (S.D. Ohio 1991); Fairchild & Co. v. Richmond, Fredericksburg & Potomac R.R. Co.,
516 F. Supp. 1305 (D.D.C. 1981) ("arbitrators are charged with the duty of determining what evidence is
relevant"); Cobec Brazilian Trading & Warehousing Corp. v. Isbrandtsen, 524 R Supp. 7, 10, 1982 AMC
1355, 1357-58 (S.D.N.Y, 1980) (no denial of opportunity to present evidence). But see Hoteles Condado
Beach v. Union of Tranquistes Local 901, 763 F.2d 34 (1st Cir. 1985) (exclusion of evidence improper)
and other cases discussed infra at note 12 and accompanying text.
186 E Supp. 2d 706 (E.D. Mich. 2000).
January 2003 Evidence in Arbitration 37
days and the respondent had presented evidence for a day and a half of them.
Arbitrators had closed the hearings over respondent's objection to their
refusal to receive more evidence. According to the court, "Arbitrators are not
bound to hear all the evidence tendered by the parties; they need only afford
each party the opportunity to present their arguments and evidence."'
A party seeking vacatur on the grounds that relevant evidence was not
reviewed by the arbitrators bears a heavy burden. In Circle Industries USA,
Inc. v. Parke Construction Group, Inc.,' the American Arbitration
Association (AAA) notified the parties after the hearings that the exhibits
had been misplaced and requested both parties to submit duplicate copies.
Parks did so, but without furnishing copies to Circle. Circle requested an
opportunity to review Parks's submissions, and requested that AAA specify
which of Circle's exhibits were missing, to avoid unnecessary duplication.
Without further communication, the arbitrator issued an award in favor of
Parks. Circle sought to vacate the award on the grounds that the arbitrator
may have viewed irrelevant evidence submitted by Parks and had refused to
accept relevant evidence from Circle, all in violation of pertinent AAA Rules
of Procedure. The district court affirmed the arbitration award,7 and the court
of appeals affirmed that judgment, even while acknowledging a violation of
the AAA Rules.' In the view of the Second Circuit, Circle had failed to prove
either point because there was no showing that Parks had actually submitted
any irrelevant evidence or that the arbitrator, despite not receiving replace-
ment copies from Circle, had refused to consider Circle's material evidence.'
Even where arbitrators rejected secondary evidence of a contract, where no
copy was available, the award against the party asserting the contract was
upheld, on the ground that the arbitrator's exclusion of secondary evidence
was "an unreviewable error of law."'1
The burden can be carried, however. For example, in Hoteles Condado
Beach v. Union of TranquistesLocal 901, after an arbitrator accepted a tran-
script on a "crucial" issue but then, without any explanation, refused to give
it any weight, the district court set the award aside, and the court of appeals

'Id. at 709. See also Forsythe Int'l., 915 F.2d at 1022 ("[Arbitrators] should be expected to act affir-
matively to simplify and expedite the proceedings before [them]"); Ottawa Office Integration, Inc. v. FFF
Bus. Sys., Inc., 132 R Supp.2d 215 (S.D.N.Y. 2001); Max Marx Color & Chem. Co. v. Barnes, 37 F.
Supp. 2d 248 (S.D.N.Y. 1999) ("cumulative" evidence); O&G/O'Connell Joint Venture v. Chase Family
Ltd. P'ship No. 3, 523 A.2d 1271 (Conn. 1987) (not "every failure or refusal to receive evidence, even
relevant evidence, constitutes misconduct .. ") (emphasis supplied).
6183 F.3d 105 (2d Cir.1999).
'Circle Indus. USA, Inc. v. Parke Constr. Group, Inc. No. 97 CV 3334(SJ), 1998 WL 713305
(S.D.N.Y. Oct. 8, 1998), aff'd in part, rev'd in part, 183 F.3d 105 (2d. Cir. 1999).
'183 F.3d at 109.
'Id. See also Clarendon Nat'l Ins. Co. v. TIG Reinsurance Co., 990 F. Supp. 304 (S.D.N.Y. 1998).
"°McMahon v. Evans, 645 N.Y.S. 2d 753, 756 (N.Y. Sup. Ct. 1996).
38 Journal of Maritime Law & Commerce Vol. 34, No. 1

affirmed.II And the arbitrator must not mislead a party by ambiguous rulings.
In Gulf Coast Indus. Workers Union v. Exxon Co. USA, 2 the court of appeals
affirmed the district court's summary judgment vacating an arbitration
award upon a finding that the arbitrator lulled a party into believing that cer-
tain statements had been admitted into evidence and then refused to consid-
er them on the ground that they were unreliable hearsay.
Arbitration is informal and may not allow for pre-hearing depositions. A
party's inability to depose a witness does not justify vacating an award
where the arbitrator does not require the witness to testify at the hearing. 3
In A.G. Edwards & Sons, Inc. v. McCullough," appellants made the novel
argument that the arbitrators had wrongfully refused to hear an expert pres-
ent "evidence" to prove "foreign law," asserting that, in the absence of a
judge, all law is "foreign" and has to be proved as a fact. The court affirmed
the award, on the grounds that foreign law is treated as "fact" only for pro-
cedural reasons and the arbitrators were competent to make their own deci-
sions on procedural matters. In the court's view, briefs afforded an adequate
opportunity to present the law."5 The principles which may be deduced from
these and similar cases, are:
"Arbitrators are the judges of relevance and materiality;
"Arbitrators may reject even relevant and material evidence in order
to streamline the process; and
" Arbitrators' decisions on these subjects are final and may not be
overturned unless they amount to a failure to provide a fundamen-
tally fair hearing.
Many courts have referred to the requirement that arbitration proceedings
be "fundamentally fair." The United States Court of Appeals for the Eighth
Circuit, however, recently remarked that: "We have never recognized 'fun-
damental unfairness' as a basis for vacating an arbitration award."'1 6 The
court of appeals continued: "If a 'fundamental unfairness' standard exists, it
must apply to arbitrationschemes so deeply flawed as to preclude the pos-

"763 F.2d 34 (1st Cir. 1985), aff'g Hoteles Condado Beach v. Union de Tronquistas, 588 R Supp.
689 (D.P.R. 1984).See also Inre Arbitration Between Tempo Shain Corp. v. Bertek, Inc., 120 .3d 16 (2d
Cir. 1997) (award vacated where arbitrators refused to hold hearings open for testimony wrongly treated
as cumulative); Olan v. Allstate Ins. Co., 622 N.YS. 2d 33 (App. Div. 1995) (arbitrator misconduct deny-
ing adjournment to obtain expert witness).
270 F.3d 847 (5th Cir. 1995). See also Iran Aircraft Indus. v. Avco Corp., 980 F.2d 141 (2d Cir. 1992)
(award vacated where evidentiary rules were changed during the hearing).
"Areca, Inc. v. Oppenheimer & Co., Inc., 960 F. Supp. 52 (S.D.N.Y. 1997).
"1764 F. Supp. 1365 (D. Ariz. 1991).
"Id. at 1369.
"Hoffman v. Cargill Inc., 236 R3d 458, 462-63 (8th Cir. 2001).
January 2003 Evidence in Arbitration 39
sibility of a fair outcome."17 If the Eighth Circuit is saying that any "funda-
mental fairness" requirement can be applied only to the overall "scheme" of
the arbitration procedure, rather than to the individual rulings of the arbitra-
tion panel, then the Eighth Circuit stands alone. In the cases elsewhere
referred to in this section, courts commomly use "fundamental fairness" and
similar terms to describe the standards that apply not only to the general pro-
cedural scheme of the arbitration, but also to the overall effect of discrete
rulings by the arbitrators."

II
LIMITATION OF CROSS-EXAMINATION AND REBUTTAL

A. Cross-Examination
Professor Irving Younger has said that cross-examination "is the greatest
engine ever invented for the discovery of truth."'9 Cross-examination is
regarded as a right and not a mere privilege.2' With this tradition, it is no
wonder that some arbitrators have been very reluctant to allow hearsay evi-
dence-i.e., evidence that is not susceptible to cross-examination. Marvin
Hill and Anthony Sinicropi, authors of a treatise focused primarily on labor
arbitration, go so far as to say that "the thinking of most arbitrators on the
subject" is that to accept "a document which is pure hearsay ... when there
is no opportunity to question the maker... would.., be unfair, improper
and prejudicial."' In seeming accord is Gary Born: "Common law jurisdic-
tions in particular regard an opportunity for cross-examination as funda-
mental to a fair arbitral proceeding."22 Of course, a distinction should be
drawn between accepting in evidence documents which contain assertions of
fact, where the maker of the assertion is not present or otherwise available
for cross-examination, and accepting live testimony but denying the oppos-
ing party any opportunity to cross-examine the witness. There are many

"Id. at 463 (emphasis supplied) (citing Lee v. Chica, 983 F2d 883, 889 (8th Cir. 1993) (Beam, J. con-
curring in part, dissenting in part) ("In the arbitration setting we have almost none of the protections that
fundamental fairness and due process [usually) require.").
"For a blistering response to the Eighth Circuit's declaration, see the district court's order on remand,
Hoffman v. Cargill, Inc., 142 F. Supp. 2d 1117 (N.D. Iowa 2001).
"Irving R.Younger, An Irrelevant Introduction to Hearsay 2 (1977).
"McCormick on Evidence 78 (John William Strong, gen'l ed., 4th ed. 1999).
2"Marvin Hill & Anthony V. Sinicropi, Evidence in Arbitration 85-86 (2d ed. 1987).

"Gary Born, International Commercial Arbitration in the United States: Commentary and Materials
89, n.227 (1994). However, Born takes the opposite view elsewhere in his book. Id. at 557. See infra text
accompanying note 28.
40 Journal of Maritime Law & Commerce Vol. 34, No. 1

examples of the former, in which arbitrators accept such documents and

promise to "give them the weight they deserve." On the other hand, exam-
ples of the latter are rare, and the presumption should be that opportunity for
reasonable cross-examination should be provided where practical. Maritime
arbitrators, indeed all international arbitrators, are compelled, by the vast
distances which may separate witnesses from the arbitral forum, to accept
documents containing hearsay."
A recent decision summarized relevant cases as follows:
"Oral argument [i.e., a live hearing] is not a necessary component of due
process in all circumstances." Doctor's Assoc., Inc. v. Distajo, 66 F.3d 438,
448 (2d Cir. 1995). "While hearings are advisable in most arbitration pro-
ceedings, arbitrators are not compelled to conduct oral hearings in every
case'" Griffin Industries, Inc. v. Petrojam, Ltd., 58 F. Supp. 2d 212, 219-220
(S.D.N.Y. 1999) (citing Intercarbon Bermuda Ltd. v. Caltex Trading and
Transport Corp., 146 FRD 64 (S.D.N.Y. 1993)). "The lack of oral hearings
does not amount to the 'denial of fundamental fairness' required to warrant
vacating the award." Id. at 220 (quoting Transit Casualty Co. v. Trenwick
Reinsurance Co., 659 F. Supp. 1346, 1354 (S.D.N.Y. 1987), aff'd, 841 F. 2d
1117 (2d Cir. 1988)). "As long as an arbitrator's choice to render a decision
based solely on documentary evidence is reasonable, and does not render the
proceeding 'fundamentally unfair,' the arbitrator is acting within the liberal
sphere of permissible discretion." Id.2'
In Kiewit v. InternationalBrotherhood of Electrical Workers,5 the court
upheld an award over a party's objection that it was not permitted to cross-
examine an opposing witness. "Whether it would have been better practice
for the arbitrator to have permitted the cross-examination is not the issue.
[The party] was not deprived of an opportunity to present its position. 2 6 It
should be noted that even obviously improper rulings on this and other

"Id. 87-88. But see London Court of International Arbitration Rules, Art. 11.4, granting parties the
right to request opposing witnesses, whose testimony has been accepted in written form, to appear for
cross-examination. The LCIA Rules are available for downloading in pdf format at
<http://www.lcia-arbitration.com/lcia/download/> (visited 12/15/02).
'British Ins. Co. of Cayman v. Water Sheet Ins. Co., Ltd., 93 F. Supp. 2d 506, 517 (S.D.N.Y. 2000).
"76 F. Supp. 2d 77 (D. Mass. 1999).
1Id. at 81 (emphasis supplied). See also Generica Ltd. v. Pharm. Basics, Inc., 125 F.3d 1123 (7th Cir.
1997); Crysen/Montenary Energy Co. v. Shell Oil Co., 240 B.R. 166 (S.D.N.Y. 1999) (citing Sunshine
Mining Co. v. United Steelworkers, 823 F.2d 1289, 1295 (: "A party does not have an absolute right to
cross-examination at an arbitration hearing.")); Castleman v. AFC Enterprises, 995 F Supp. 649 (N.D. Tex.
1997) (cross-examination of medical witness denied); Clairol, Inc. v. Enertrac Corp., 690 A.2d 418 (Conn.
App. Ct. 1997) (referring to three choices when a witness who has testified on direct becomes unavailable
for cross-examination-to declare a mistrial, strike the direct testimony, or let the direct testimony stand);
At. Shores Resort Joint Venture v. Martin, A.I.A. 731 F. Supp. 1279, (D.S. Car. 1990); Christian Dior, Inc.
v. Hart Schaffner & Marx, 637 N.E.2d 546, (111.App. 1994); Wailua Associates v. Aetna Cas. & Sur. Co.,
904 . Supp. 1142 (D. Haw. 1995) (".... parties do not have an absolute right to cross-examine witneses,"
January 2003 Evidence in Arbitration 41
issues by an arbitrator will be upheld by the courts where a party has waived
its right to object. 27
Born fairly summarizes the thinking of most arbitrators-that, all things
being equal, the opportunity to cross-examine should be afforded, but that
hearsay evidence is admissible in most cases and cross-examination is not in
all cases fundamental to a fair hearing:
It is widely assumed that cross-examination is a fundamental procedural right
in the American legal tradition, Chambers v. Mississippi,410 U.S. 284 (1973),
and that it must be afforded in arbitration. In fact, there appears to be no such
per se rule. Lower courts have considered the importance of the testimony, the
available opportunities for rebutting it and other factors in deciding whether a
denial of cross-examination rendered a hearing fundamentally unfair.
Fairchild & Co. v. Richmond, Fredericksburgand Potomac R.R. Co., 516 F
Supp. 1305, 1314-15 (D.D.C. 1981); Laminoirs etc. v. Southwire Co., 484 F.
Supp. 1063, 1066-67 (N.D. Ga. 1980); StandardTankers, etc. v. Motor Tank
Vessel AKTI, 438 F. Supp. 153 (E.D.N.C. 1977). Most cases, however, have
involved only refusals to permit particular requests for cross-examination, not
blanket denials of all opportunities for cross-examination.28

These guidelines seem to have achieved broad consensus, based on the

belief of most arbitrators that their experience enables them to filter out evi-
dence, such as hearsay, that the rigorous rules of evidence applicable in liti-
gation would prevent them from considering. But that belief may not be sup-
ported by empirical data. Last year, the New York Times reported a study of
Ohio judges:
to test whether they could discount what they knew to be inadmissible infor-
mation-like a defendant's prior conviction. It turned out they couldn't. Those
who heard information that reflected badly on the defendant-but that the law
says should be ignored-ended up voting against the defendant; judges who
didn't hear it ruled the other way.29

at 1148); but see Kaplan v. Alfred Dunhill of London, Inc., 96 Civ. 0258, 1996 U.S. Dist. LEXIS 16455
(S.D.N.Y. Nov. 4, 1996) ("A fundamentally fair hearing requires that the parties be permitted to ... cross-
examine adverse witnesses"); In re Watkins-Johnson Co. v. Pub. Utilities Auditors, No. C-95 20715, 1996
WL 83883 (N.D.Cal. Feb. 20, 1996) (overturning award where written statement accepted, with no
opportunity to prepare response or cross-examine).
ZSee Kempf v. Ruryear, 942 P.2d 375 (Wash. Ct. App. 1997) (award upheld where party did not
object while "arbitrators refused to hear certain evidence, refused cross-examination, did not swear wit-
nesses, and had ex parte contact with both parties").
2
"Born, supra note 21, at 557.
'Patricia Cohen, Judicial Reasoning Is All Too Human, N.Y. Times, June 20, 2001, at p. B7.
42 Journal of Maritime Law & Commerce Vol. 34, No. 1

B. Rebuttal

The guideline that applies to to most other evidentiary issues applies also
to issues of rebuttal evidence-so long as the arbitrator provides a funda-
mentally fair hearing, rebuttal evidence may be rejected. 0 Since the arbitrator
has discretion to decide what is pertinent and material-and to reject evi-
dence which is clearly pertinent and material under many circumstances-
the burden of proof required to overturn such rulings is, in most cases, over-
whelming.

IV
COMPELLING PRODUCTION OF DOCUMENTS AND
TESTIMONY

A. From an Adversary

It is axiomatic that discovery is not as available in arbitration as it may be

in court litigation. According to Born:
Even where discovery is in principle permitted, the scope of discovery is often
markedly more limited than in litigation. As a practical matter, most tribunals
are hesitant to issue discovery orders, in part because they lack both the direct
authority to sanction disobedience and the resources to supervise the process.
In addition, it is widely recognized that one of the reasons that parties agree
upon arbitration to resolve their disputes is to avoid the expense and delay of
discovery. The availability and scope of tribunal-ordered discovery is often
significantly influenced by the background of the arbitrators. In particular
civil law and common law lawyers often take significantly different approach-
es to discovery. Arbitrators from civil law nations, coming from inquisitorial
traditions where party-initiated discovery is not common, are especially reluc-
tant to order party-directed discovery. Common law lawyers, particularly
those from the United States, are more accustomed to a party-directed adver-
sarial process and free-wheeling discovery; where the arbitrators and lawyers
are from such traditions, some measure of discovery is not uncommon.3

Born adds the observation that, "In general, courts have been unwilling to
accept claims that an arbitrator's refusal to order production of vital evi-

'Brinnel Housing Dev. Fund Corp. v. Local 32-B, 767 F. Supp. 63 (S.D.N.Y. 1991); In re Solkav
Solartechnik G.E.S.M.B.H. v. Besicorp Group Inc., 652 N.YS.2d 654, 657 (N.Y App. Div. 1997)
("Moreover, petitioner failed to establish by clear and convincing proof that its rebuttal evidence consti-
tuted pertinent and material testimony"), rev'd on other grounds, 695 N.E.2d 707 (N.Y. 1998).
'Born, supra note 21, at 83.
January 2003 Evidence in Arbitration 43
dence is misconduct, amounting to a failure to permit a party to present its
32
case."
As we said above regarding cross-examination, maritime arbitrations
may, because of their logistics, depend more on documentary evidence than
those arising in other industries. It may not be coincidental, therefore, that a
maritime case laid down a more rigorous rule for arbitrators to follow con-
cerning the production of documents. In Chevron Transportation Corp. v.
Astro Vencedor CompaniaNaviera,the court referred to "an affirmative duty
of arbitrators to insure that relevant documentary evidence in the hands of
one party is fully and timely made available to the other side before the hear-
ing is closed."33 Some recent cases have been collected and summarized as
follows:
Arnold v. Arnold Corp., 920 F.2d 1269, 1279 (6th Cir. 1990) ("[i]f the arbi-
trator were to deny Arnold access to the necessary records or persons to prove
his claim and he were to lose, the judgment in favor of Arnold Corp. could be
vacated under section 10(d) of the Federal Arbitration Act"); Cotter v.
Shearson Lehman Hutton, Inc., 126 F.R.D. 19, 21-22 (S.D.N.Y. 1989) (reme-
dy for arbitrator's too narrow circumscription of opportunity to present proof
is vacation of award); Cook Chocolate Co. v. Salomon Inc., 1988 WL 120464
(S.D.N.Y. 1988) (noting that plaintiff could challenge arbitrator's final award,
court denied plaintiff's motion to compel discovery that arbitrator had refused
to order). Cf. Hyman v. Pottberg's Ex'rs, 101 F2d 262, 265 (2d Cir. 1939)
(arbitrators should call for documents
34
of any importance in the hands of
claimants or any other evidence).
The AAA, inclined to provide the broadest discretion to arbitrators in this
area, states: "If [the arbitrator is] convinced that the document is essential,
the party should be directed to produce it. 35 But the AAA does offer an alter-
native to the subpoena: "When, as rarely happens, there is no compliance,
36
[the arbitrator] may either issue a subpoena or draw a negative influence."
Query, however, whether drawing a negative inference will always suffice.
In Chevron Transportation Corp. v. Astro Vencedor Compania Naviera,37

"Id. at 848 (citing, inter alia, Asiatic Petroleum Corp. v. New England Petroleum Corp., 410 N.Y.S.2d
91 (App. Div. 1978) ("It is the law that an award may not be vacated for refusal to enforce the subpoe-
nas.")). But this position, as even Born concedes, may be too deferential.
33300 R Supp. 179, 181 (S.D.N.Y 1969).
"Teresa Snider, The Discovery Powers of Arbitrators and Federal Courts under the Federal
Arbitration Act, 34 Tort & Ins. L. J. 101, n.108. But see In re Arbitration between Metalex Corp. and
Sunline Shipping Co., 00 Civ. 3097, 2000 U.S. Dist. LEXIS 17462 (S.D.N.Y Dec. 6, 2000) (award
upheld under SMA short form rules where discovery request for log extracts, etc. was denied).
"American Arbitration Association, A Guide for Commercial Arbitrators 18 (1997) (emphasis supplied),
available at <http://www.adr.org/index2.l.jsp?JSPssid= 15727&JSPsrc=upload\LIVESITE\
RulesProcedures\ADRGuides\comguide.html> (visited 12/15/02).
"Id.
"1300 F. Supp. 179 (S.D.N.Y 1969).
44 Journalof Maritime Law & Commerce Vol. 34, No. 1

e.g., where the documents requested and denied were the vessel's logs, a
generalized negative inference may not have substituted for the detailed
information and avenues of inquiry that surely would have been provided by
the daily record of the activities of a vessel, her officers and crew.
Section 23 of the Rules of the Society of Maritime Arbitrators (SMA)
clearly grants to arbitrators the power to "subpoena witnesses or documents
at their own initiative or at the request of any party." 3 The associated com-
ments are worded quite forcefully: "Arbitrators have the power to subpoena
recalcitrant witnesses and documents and to otherwise order discovery in
the same manner as judges."39 Section 23 of the Rules, however, is not as
expansive as the commentary, merely stating that: "The Panel has the power
to direct that depositions be taken from witnesses who cannot testify in per-
son."' The emphasized phrase mirrors similar language in the Uniform
Arbitration Act."' Query whether discovery by deposition of witnesses who
may testify in person may be required under the SMA Rules.42
The Rules of the Miami Maritime Arbitration Council (MMAC)43 are
based on the model arbitration rules of the United Nations Commission on
International Trade Law' and therefore are designed to conform somewhat
to civil law (i.e., non-discovery) traditions. Nonetheless, article 23.3. of the
MMAC Rules appears to give plenary power to the arbitrators: "At any time
during the arbitral proceedings the arbitral tribunal may require the parties
to produce documents, exhibits or other evidence within such a time as the
tribunal shall determine." By including a reference to the SMA, MMAC or
similar rules in an arbitration clause, the parties may be regarded as having
agreed to place broad subpoena powers in the hands of the arbitrator. It
might be legitimately concluded, therefore, that an arbitrator who refuses to
exercise those powers fully has failed to afford the party seeking discovery
its contractual right to present its case. 5 Most arbitrators attempt to balance

"Society of Maritime Arbitrators, Inc., A Guide to Maritime Arbitration in New York (1997), avail-
able at <http://www.smany.org/sma/maritimefaq.html> (visited 12/15/02).
"Id. at 9.
4Id. (emphasis supplied).
"According to section 7(b) of the Uniform Arbitration Act, arbitrators "may permit a deposition to be
taken, in the manner and upon terms designated by the arbitrators, of a witness who cannot be subpoe-
naed or is unable to attend the hearing" 7 U.L.A. 114 (1985).
4See Koch Fuel Int'l. Inc. v. MN/V South Star, 118 F.R.D. 318, 1988 AMC 1227 (E.D.N.Y. 1987)
(enforcing subpoenas for deposition of crew members where vessel was about to leave port).
"Reprinted at 19 J. Mar. L. & Com. 447 (1988), and available at Marine Council
<http://www.marinecouncil.com/mmac.htm> (visited 12/15/02).
"Arbitration Rules of the United Nations Commission on International Trade Law, adopted by the
UN General Assembly on 15 December, 1976, UN Doc. 31 GAOR Supp. No. 17 (A/31/17).
""If the arbitrators are granted wide powers to decide disputes, and to order discovery, is there no
obligation on the arbitrators to exercise some minimal effort to ensure that the parties' dispute is decid-
ed on the basis of the relevant facts?" Born, supra note 21, at 848.
January 2003 Evidence in Arbitration 45
the competing goals of efficiency and fairness in deciding discovery
requests. Robert Benson has offered a list of considerations useful to arbi-
trators in such situations:
" What alternatives to formal discovery might provide the needed
information or documents?
* Is the cost of the proposed discovery in proportion to the amount in
controversy?
"Will the discovery delay the arbitration?
" Is the discovery sought particularized and specific as to the infor-
mation sought?
" Is there a specific defined need for the discovery? May justice be
thwarted if discovery is not obtained?
* Can the need for discovery be obviated by compelling witnesses,
documents, etc. at the hearing or by other procedures?
"What burden does the requested discovery impose on the responding
party?
" What kind of discovery is sought? (Compare production of docu-
ments to depositions.)"
Some practitioners "solve" the discovery issue by incorporation of such
discovery rules as those set forth in the Federal Rules of Civil Procedure or
the International Bar Association's Supplementary Rules of Evidence.47 But
these carry significant disadvantages. The Federal Rules of Civil Procedure
allow almost unlimited rights of discovery, alien to the tradition of arbitra-
tion and to its customary practice. The IBA Supplementary Rules Art. 5, set-
ting forth the procedures concerning witnesses (including prior production
of witness statements, etc.) contains the following:
9. Any witness who gives oral evidence shall in the first place be questioned
by the Arbitrator, and thereafter submit to examination by the party calling
him, cross-examination by all other parties and re-examination by the party
calling him.'
We doubt that any lawyer trained in the common-law tradition would wish
to surrender the right to be first to question his or her own witness.

"Robert E. Benson, The Power of Arbitrators and Courts to Order Discovery in Arbitration-Part I,
25 Colo. Lawyer 55, 59 (1996).
International Bar Association, Supplementary Rules Governing the Presentation and Reception of
Evidence in International Commercial Arbitration (1983), reprinted in 1985 Y.B. Com. Arb. 152-56 and
available at The American Society of International Law, ASIL Guide to Electronic Resources for
International Law <http://www.asil.orglresource/p42.htm> (visited 12/23/02).
,id.
46 Journalof Maritime Law & Commerce Vol. 34, No. 1

B. From a Third Party

Despite some cases to the contrary,49 courts have supported arbitrators'

efforts to subpoena witnesses for deposition or for a hearing, and to subpoe-
na documents for production prior to, or at, a hearing." Some U.S. district
courts have enforced subpoenas beyond the boundaries of the district where
the arbitration forum is located, by resort to Rule 45.51 An attorney seeking
to enforce a subpoena at such long range may commence an action in the dis-
trict where the arbitration forum is located, issue a subpoena citing the case's
name and number, and serve it in the district where the witness or document
can be found. In some cases, the U.S. district court will enforce it.52
The Committee on Maritime Arbitration of the Maritime Law Association
of the United States has recommended that, to eliminate any uncertainty,
section 7 of the Federal Arbitration Act be amended as follows:
Designate the existing text as subsection (a) and add new subsections (b) and (c):
(a) The arbitrators selected either as prescribed in this title or otherwise, or a
majority of them, may summon in writing any person to attend before them
or any of them as a witness, and in a proper case to bring with him or them
any book, record, document, or paper which may be deemed material as evi-

'"Lower U.S. courts have generally refused requests under §7 of the FAA by parties for discovery in
aid of arbitration... :'Born, supra note 21, at 849, citing Commercial Solvents Corp. v. Louisiana Liquid
Fertilizer Co., 20 F.R.D. 359 (S.D.N.Y. 1957).
'E.g., Am. Fed'n of Television and Radio Artists v. WJBK-TV, 164 F.3d 1004, 1009 (6th Cir. 1999);
In re Arbitration between Douglas Brazell and Am. Color Graphics, Inc., M-82 (AGS), 2000 U.S. Dist.
LEXIS 4482 (S.D.N.Y. Apr. 7, 2000); Amgen Inc. v. Kidney Center of Delaware County Ltd., 879 F.
Supp. 878, 880, 881 (N.D. Ill. 1995) ("While the statute [Sec. 7 of the FAA] appears to allow an arbi-
trator to summon a third person only to testify at trial, as opposed to a pretrial discovery deposition,
courts have held... that implicit in the power to compel testimony and documents for purpose of a hear-
ing is the lessor [sic] power to compel such testimony and documents for purposes prior to hearing");
Meadows Indem. Co. v. Nutmeg Ins. Co., 157 F.R.D. 42 (M.D. Tenn. 1994); Stanton v. Paine Webber
Jackson & Curtis, Inc., 685 F. Supp. 1241 (S.D. Fla. 1988). Contra (re discovery prior to hearing) In re
Application of Deiulemar Compagnia Di Navigazione, 198 F.3d 473, 2000 AMC 317 (4th Cir. 1999);
Comsat Corp. v. National Science Foundation, 190 F.3d 269 (4th Cir. 1999) (requiring "special need or
hardship"); In re Arbitration between Integrity Ins. Co. v. Am. Centennial Ins. Co., 885 F Supp. 69
(S.D.N.Y. 1995). See Sean T. Carnathan, Discovery in Arbitration? Well, it Depends .... Bus. L. Today,
Mar.-April 2001, at 22.
Teresa Snider has suggested conducting arbitration hearings in series "and thus depos[ing] the non-
parties in front of the arbitration panel." Snider, supra note 33, at 104. Her article collects the relevant
cases and discusses them intelligently, but the suggestion is of doubtful utility if the purpose of the dep-
osition is to discover facts rather than to present them in evidence.
"Fed. R. Civ. P. 45(a)(3)(b).
5See Amgen Inc. v. Kidney Center of Delaware County Ltd., 879 F. Supp. 878, 883 (N.D. I11. 1995).
In that case, the court relied on the parties' agreement to arbitrate pursuant to the Federal Rules of Civil
Procedure. But see In re Arbitration between Sec. Life Ins. Co. of Am. and Duncanson & Holt, Inc., 228
F3d 865 (8th Cir. 2000) (corporation in contempt where it belatedly asserted its subpoenaed witness was
out of the jurisdiction); Liberty Sec. Corp. v. Fetcho, 114 F. Supp. 2d 1319 (S.D. Fla. 2000) (award
upheld where Pennsylvania resident subpoenaed for Florida arbitration).
January 2003 Evidence in Arbitration 47
dence in the case. The fees for such attendance shall be the same as the fees
of witnesses before masters of the United States courts. Said summons shall
issue in the name of the arbitrator or arbitrators, or a majority of them, and
shall be signed by the arbitrators, or a majority of them, and shall be directed
to the said person and shall be served in the same manner as subpoenas to
appear and testify before the court; if any person or persons so summoned to
testify shall refuse or neglect to obey said summons, upon petition the United
States district court for the district in which such arbitrators, or a majority of
them, are sitting may compel the attendance of such person or persons before
said arbitrator or arbitrators, or punish said person or persons for contempt in
the same manner provided by law for securing the attendance of witnesses or
their punishment for neglect or refusal to attend in the courts of the United
States.

(b) In a maritime transaction, the arbitrators, or a majority of them, may issue

a subpoena to any person to give deposition testimony deemed material to the
transaction and/or to produce documents or provide access to evidence which
may be deemed material to the transaction; and may authorize a party to seek
court assistance in obtaining testimony and such other evidence for use in the
arbitration proceedings. A district court, acting within its admiralty jurisdic-
tion may enforce the subpoena or otherwise order that a person give a depo-
sition, produce documents, or provide access to evidence on terms that the
court deems just and reasonable.

(c) In a maritime transaction, where the formation of an arbitration tribunal is

incomplete, or in other exigent circumstances impairing a party's ability to
obtain authorization from the arbitrators to seek court assistance, a district
court acting within its admiralty jurisdiction and upon application by any
interested party, may order that the testimony of a person or other evidence be
preserved for use in future maritime arbitration proceedings, on terms that the
court deems just and equitable.53

Despite the seeming felicity of this amendment, the American Arbitration

Association has registered its disfavor and the decision was made not to seek
formal Maritime Law Association endorsement. 4 The AAA generally fears
any attempt to modify the FAA.

3
Maritime Arbitration and Mediation Committee, Proposed Changes to the Federal Arbitration Act,
Proceedings of the Maritime Law Association of the United States, New York, November 3, 2000, Doc.
No. 754, pp. 12431-12434, available at the Association's on line Library, <http://www.mlaus.org/> (vis-
ited 12/15/02). The Committee also offered extensive notes in support of the recommended changes,
which can be viewed at the Association's on line Library.
'Maritime Arbitration and Mediation Committee, Formal Report of the Committee on Maritime
Arbitration, Proceedings of the Maritime Law Association of the United States, New York, May 4, 2001,
Doc. 758, p. 12669.
48 Journalof Maritime Law & Commerce Vol. 34, No. 1

The Uniform Arbitration Act may be revised with respect to discovery and
arbitrators' subpoenas, as per the following recommendation intended to lib-
eralize State law:

WITNESSES; SUBPOENAS; DEPOSITIONS; DISCOVERY

(a) An arbitrator may issue a subpoena for the attendance of a witness and for
the production of records and other evidence at any hearing and may admin-
ister oaths. A subpoena must be served in the manner for service of subpoe-
nas in a civil action and, upon (motion) to the court by a party to the arbitra-
tion proceeding or the arbitrator, enforced in the manner for enforcement of
subpoenas in a civil action.

(b) In order to make the proceedings fair, expeditious, and cost effective, upon
request of a party to or a witness in an arbitration proceeding, an arbitrator
may permit a deposition of any witness to be taken for use as evidence at the
hearing, including a witness who cannot be subpoenaed for or is unable to
attend a hearing. The arbitrator shall determine the conditions under which the
deposition is taken.

(c) An arbitrator may permit such discovery as the arbitrator decides is appro-
priate in the circumstances, taking into account the needs of the parties to the
arbitration proceeding and other affected persons and the desirability of mak-
ing the proceeding fair, expeditious, and cost effective.55

In National Broadcasting Co., Inc. v. Bear Steams & Co., Inc.,56 a party
to an International Chamber of Commerce arbitration in Mexico petitioned
a U.S. district court to enforce a subpoena, relying on 28 U.S.C. § 1782,
which authorizes such assistance for litigants before a "foreign or interna-
57
tional tribunal." The court held that the arbitration did not qualify.
A failure of the subpoena process is not grounds to vacate an award. 58 Nor,
where an attorney for a party is authorized to issue a subpoena, is it grounds
59
for vacatur that an arbitrator refused or failed to issue one.

"Timothy J. Heinsz, The Revised Uniform Arbitration Act: Modernizing, Revising, and Clarifying
Arbitration Law, 2001 J. Disp. Resol. 1.
56165 F.3d 184 (2d Cir. 1999).
"Accord, Republic of Kazakhstan v. Biederman Int.'l, 168 F.3d 880 (5th Cir. 1999).
"Lucas v. Philco-Ford Corp., 399 F. Supp. 1184 (E.D. Pa. 1975) (award upheld where a witness failed
to honor the arbitrator's subpoena).
5Henegan Constr. Co., Inc. v. Bettinger & Leech, Inc., 602 N.Y.S.2d 18 (App. Div. 1993). Not only
did the reviewing court find that the defendant-appellant had failed to meet the "heavy burden" of demon-
strating arbitrator misconduct by clear and convincing evidence, it also made part of the record its annoy-
ance at the attempt: "[Diefendant can hardly complain that the arbitrator was guilty of misconduct
because he did not do what its attorney could have done on his own initiative." Id.
January 2003 Evidence in Arbitration 49
V
EXPERT TESTIMONY
According to Hill and Sinicropi:
When the issue before the arbitrator is related to some science, profession or
occupation beyond the competence of the average layman, an expert may be
used. Thus arbitrators have received and credited expert testimony from
physicians, polygraph examiners, psychiatrists, and handwriting experts.'

Various arbitration rules specifically permit such appointments by the arbi-

trator(s).6' Born offers this astute advice: "[T]o be useful, the expert's report
... must not purport to resolve the parties' dispute. The parties must.., be
permitted to review and comment on the expert's report, to provide contrary
evidence, and in appropriate cases, to cross-examine the expert."62 On the
other hand, arbitrators are not required to hear expert testimony.63 It appears
that state and federal rules concerning the relationship between experts and
parties, including tampering, privilege and confidentiality, do not necessari-
ly apply in arbitration. 4

VI
SETTLEMENT OFFERS
Hill and Sinicropi are of the view that offers of settlement or compromise
are not generally admissible as evidence in arbitration hearings: "Although
such evidence may be relevant .... it is a general tenet of arbitration that
compromise efforts to settle a grievance will not be permitted to prejudice
the party's case when the matter goes to arbitration" Their admonition to
arbitrators is unequivocal: "Unless there is a compelling reason to introduce
it, such evidence should be summarily excluded."6 While constituting good
advice for most instances, its tone threatens to exceed its reach. Awards

'Supra note 20, at 82. See also Born, supra note 21, at 839 ("In some cases, arbitrators appoint an
expert to assist them in addition to experts retained by the parties [although] .... [i]t would be unusual
to do so over both parties' objection.").
6
1ICC Rules art. 14(2); AAA International Rules art. 23.
6
Bom, supra note 21, at 840.
"A.G. Edwards & Sons, Inc. v. McCullough, 764 F. Supp. 1365 (D. Ariz. 1991).
'See Indus. Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434, 1444-45 (11 th Cir.
1998).
"Id. at 156.
50 Journalof Maritime Law & Commerce Vol. 34, No. 1

based on evidence of settlement offers are sometimes upheld by the courts,

even in the absence of reasons of the sort generally regarded as compelling.66
Something should be said at this point about the confidentiality of the
mediation process. Many statutes bar the introduction of any evidence
derived from participation in mediation. 6 Arbitrators should be even more
reluctant than judges to accept evidence of settlement offers made in the6
course of mediation and they run a greater risk of vacatur should they do so. 1

VII
PRIVILEGE
A testimonial privilege permits a witness to refuse to disclose certain
types of information in spite of its relevance. Generally, arbitrators are
inclined to enforce the privileges traditionally governing communications
between doctor/patient, husband/wife, attorney/client, as well as those relat-
ing to trade secrets, classified information, communications to a grand jury
or communications in mediation. 69 This is not a comprehensive list.7" Other
privileges that should qualify include required reports, communications to
clergymen, and political votes.7 Generally speaking, privileges do not
appear to be treated differently in arbitrations and courts. 72 The attorney

'E.g., U.S. ex rel. Nat'l Roofing Services, Inc. v. Lovering-Johnson, Inc., 53 F Supp. 2d 1142 (D.
Kan. 1999). See also Ouziel v. Shearson Lehman Bros., Inc., CV 86-1822, 1988 WL 36933 (E.D.N.Y
April 11, 1988), cited in A.G. Edwards & Sons, Inc., 764 R Supp. at 1368, for the proposition that "evi-
dence of settlement offer, while inadmissible in court, was admissible in arbitration where rules of evi-
dence are inapplicable"; see also Allus Investments L.P. v. Pudgie's Famous Chicken, Ltd., 134 F.3d 231
(4th Cir. 1998). Contra Bowles Fin. Group v. Stifel, Nicolaus & Co., Inc., 22 F.3d 1010 (10th Cir. 1994)
(obiter dictum).
67
Jay E. Grenig, Alternative Dispute Resolution With Forms §7.13 (2d. ed. 1997). For a comprehen-
sive list of state statutes, see Folb v. Motion Picture Indus. Pension & Health Plans, 16 F. Supp. 2d 1164
(C.D. Cal. 1998).
"See generally Joshua J. Engelbert, Note, Federal Mediation Privilege: Should Mediation
Communications Be Protected From Subsequent Civil and Criminal Proceedings?, 1999 J. of Disp. Res. 73.
"See Hill & Sinicropi, supra note 20, at 160-62.
7
See Fed. R. Evid. 501: "[The privilege of a witness, person, government, State, or political subdi-
vision thereof shall be governed by the principles of the common law as they may be interpreted by the
courts of the United States in the light of reason and experience."
7
Id. advisory committee note. See also Holodnak v. AVCO Corp., 381 F. Supp. 191 (D. Conn. 1974)
(award vacated where arbitrator permitted inquiry into political views of witness/party).
"Born, supra note 21, at 840 (citing Robbins v. Day, 954 F.2d 679 (1lth Cir. 1992); W. Employers
Ins. Co. v. Merit Ins. Co., 492 E Supp. 53 (N.D. Il1. 1979) (assuming that accountants' privilege was
applicable to subpoenas issued by arbitral tribunal, at least where judicial enforcement of subpoena was
sought); Great Scott Supermarkets, Inc. v. Local Union No. 337, 363 F. Supp. 1351 (E.D. Mich. 1973)
(enforcing arbitral award after considering but rejecting challenge to arbitrator's order for alleged attor-
ney work product); see also Local Lodge 1746 v. Pratt & Whitney Div., 329 F. Supp. 283 (D. Conn. 1971)
(requiring in camera inspection by arbitrator to prevent parties from having access to classified or confi-
dential information); Minerals & Chemicals Philipp Corp. v. Panamerican Commodities, SA, 224
January 2003 Evidence in Arbitration 51
client privilege may be, and is often, asserted in arbitration proceedings.
Arbitrators should, after in camera review of the assertedly privileged docu-
ments, uphold the privilege where appropriate.73 It bears repeating here that
use of privileged materials for some other purpose, not contemplated by the
privilege, may constitute a waiver. 4
Ordinarily, an arbitrator's erroneous ruling on a privilege claim will not
result in vacatur of the award since an error of law by an arbitrator is not a
75
sufficient ground for vacatur.

IX
THE WORK PRODUCT DOCTRINE
Work product consists of material, in tangible or intangible form, pre-
pared by a lawyer for litigation (or arbitration). Most work product is
immune from discovery or other compelled disclosure.76 While often pro-
tective of the same material, the attorney-client privilege is different from
the work product doctrine. For example, a showing of need has no effect on
the privilege, but "when a party makes a substantial showing that he is
unable through his efforts to obtain needed information, the balance of equi-
ties with respect to work product shifts in favor of disclosure . . . .'" In
Admiral Ins. Co. v. U.S. District Court, the United States Court of Appeals
for the Ninth Circuit dictated an in camera procedure by which courts (and
arbitrators) may adjudge the eligibility of various documents for protection
from discovery, meanwhile maintaining confidentiality. Because application
of the work product doctrine depends on how important is disclosure under
the circumstances, the ensuing decision by an arbitrator is necessarily more
fact specific. Such decisions are therefore afforded even greater deference
than those regarding privileges.7"

N.Y.S.2d 763 (App. Div. 1962) (holding, under state law, that arbitrators' subpoena would not be
enforced as to privileged materials and that in camera judicial inspection was required before disclosure
to arbitrators); Di Maina v. N.Y. State Dep't of Mental Hygiene, 386 N.Y.S.2d 590 (Sup. Ct. 1976) (hold-
ing, under state law, that subpoena would be enforced, on theory that applicable privileges had been
waived and that arbitrator could maintain confidentiality of materials in any event); Langemyr v.
Campbell, 279 N.Y.S.2d 41 (App. Div. 1967) (5th and 14th amendments).
"See, e.g., PaineWebber Group, Inc. v. Zinsmeyer Trusts P'ship, 187 F.3d 988 (8th Cir. 1999).
'See, e.g., In re Kidder Peabody Sec. Litig., 168 F.R.D. 459 (S.D.N.Y. 1996).
"Chiarella v. Viscount Indus. Co., Ltd., 1993 WL 497967 (S.D.N.Y. Dec. 1, 1993); Lindholm v.
Galvin, 157 Cal. Rptr. 167 (Ct. App. 1979); but see Holodnak v. AVCO Corp., 381 F Supp. 191 (D. Conn.
1974).
'6Fed. R. Civ. P. 26(b)(3).
"Admiral Ins. Co. v. U.S. Dist. Court, 881 F.2d 1486, 1494 (9th Cir. 1988).
'See, e.g., Great Scott Supermarkets, Inc. v. Local Union No. 337, 363 F. Supp. 1351 (E.D. Mich.
1973).
52 Journal of Maritime Law & Commerce Vol. 34, No. 1

X
OTHER EVIDENTIARY ISSUES IN ARBITRATION

A. PerjuriousTestimony

For an alleged fraud, including perjury, to constitute grounds for vacatur (i)
the movant must establish the existence of fraud by clear and convincing evi-
dence, (ii) the fraud must not have been discoverable upon the exercise of due
diligence prior to or during the arbitration, and (iii) the movant must demon-
strate that the fraud materially related to an issue in the arbitration.79

B. Illegally ObtainedEvidence

Use of illegally obtained evidence in an arbitration may result in its

vacatur s0

C. PrejudicialEvidence

There may be less protection against the introduction of prejudicial evi-

dence in arbitrations.8'

D. Judicial Notice

Rule 201 of the Federal Rules of Evidence provides that a court may take
judicial notice of matters beyond reasonable controversy. Similarly, arbitra-
tors may take "arbitral notice" of such matters, without requiring traditional
methods of proof.82 On the other hand, an award may be vacated where an
arbitrator makes "improper use of personal knowledge."83

79
Bonar v. Dean Witter Reynolds, Inc., 835 F.2d 1378, 1383 (11 th Cir. 1988). See also Merrill, Lynch,
Pierce, Fenner & Smith v. Lambros, 1 F Supp. 2d 1337 (M.D. Fla. 1998).
'Dampman v. Morgenthau, 599 N.Y.S.2d 390 (Sup. Ct.,, N.Y County 1993).
8
See Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299 (9th Cir. 1994) (in a sex harassment case, the
remedies and procedural protections available in an arbitral forum may differ significantly from those
contemplated by the legislature, to the detriment of the employee).
2
See, e.g., Consol. Coal Co. v. United Mine Workers, 213 F.3d 404 (7th Cir. 2000); In re Arbitration
between Northwestern Nat'l Ins. Co. and Generali Mexico Compania de Seguros, S.A., 2000 WL 520638
(S.D.N.Y. May 1, 2000).
"Fritz v. Fritz, 588 N.Y.S.2d 415 (App. Div. 1992).
January 2003 Evidence in Arbitration
Xi
CONCLUSION
Perhaps a better formulation of the cliche "no evidence rules apply in
arbitration" might be that the rules of evidence for litigation may be applied
in arbitration, and often are. When applied in arbitration, the rules of evi-
dence generally affect only the weight to be afforded, rather than admissi-
bility or discoverability. If these rules of evidence are not applied when they
should be, in some cases, vacatur of the award may result. Generally, how-
ever, awards based on erroneous evidentiary decisions by arbitrators will be
upheld unless the decision, in effect, deprived a party of a "fundamentally
fair" hearing.
Merely to avoid an award which is so defective as to be vacated, of course,
should not be the goal of arbitrator or counsel. The loftier and better goal is
that of the Revised Uniform8 5 Arbitration Act t -- arbitration that is "fair, effi-
cacious and cost effective."

__ U.L.A. - (2000), available for download as a pdf document at http://www.law.upenn.edu/

bll/ulc/uarba/arbOOps.pdf
"Id., prefatory note.