Evidence - Additional Facility Arbitration (2022 Rules)

Each party has the burden of proving the facts relied on to support its claim or defense (Additional Facility Arbitration Rule 46(2)). The Tribunal has discretion to determine the admissibility, weight and credibility of the evidence adduced (Additional Facility Arbitration Rule 46(1)).

Parties file their evidence with their written pleadings. Evidence filed in the written process may include exhibits, witness statements, expert reports, audio and video files. Such evidence must be filed together with the submission to which it relates (Additional Facility Arbitration Rule 13).

A party may also ask a Tribunal to conduct a site visit at a place connected with the dispute (Additional Facility Arbitration Rule 50).

The type of evidence to be filed and the manner, form and timing of filing are usually discussed at the Tribunal's first session and set out in Procedural Order No. 1. If the evidence is in a language other than the procedural language of the case, it must be submitted in the original language together with a translation. Lengthy documents that are relevant only in part need to be translated only insofar as relevant, unless the Tribunal requires a complete translation (Additional Facility Arbitration Rule 15(4)).

The parties and the Tribunal often agree that the Tribunal may be guided by the International Bar Association Rules on the Taking of Evidence in International Arbitration (the "IBA Rules of Evidence") when considering the admissibility of evidence and other evidentiary issues. They also often agree that, absent exceptional circumstances, neither party may file additional evidence after the submission of the last written pleading.

Type of Evidence and Other Supporting Documents

Exhibits are documents that the parties rely upon to prove or disprove facts relevant to the dispute. Exhibits should be numbered individually and consecutively throughout the proceeding. The numbers are typically preceded by the letter "C-" for the claimant's exhibits and "R-" for the respondent's exhibits.

Arbitrations often include a document production stage, in which both parties can request certain documents or categories of document from one another (see Document Production). In addition, at any stage of the proceeding, the Tribunal may call upon a party to produce documents or other evidence  it deems necessary (Additional Facility Arbitration Rule 46(3)).

Legal Authorities are sources of law that the parties rely upon to prove relevant points of law related to the dispute. These are also numbered individually and consecutively throughout the proceeding, and the numbers are typically preceded by the letters "CL-" or "CLA-" for the claimant's authorities and "RL-" or "RLA-" for the respondent's authorities.

A Witness Statement is a written statement by a witness addressing the pertinent facts in the dispute which they have knowledge of. The statement must identify the witness, contain the evidence of the witness, and be signed and date (Additional Facility Arbitration Rule 48(1)).

An Expert Report is an opinion by an expert witness addressing specific aspects of a case that are within their area of expertise. Expert reports are often filed on the application of a particular law, on technical matters or on the calculation of damages. The expert report should review the expert’s qualifications, list the instructions on the basis of which the expert proceeded, and discuss how the expert reached his/her conclusions. 

Generally, each party produces its own witnesses and appoints its own experts. The Tribunal may call upon the parties to produce further witnesses and experts if it deems it necessary (Additional Facility Arbitration Rule 48(2)).  The examination is held in person unless the Tribunal determines that other means of examination are appropriate in the circumstances. For example, the Tribunal and the parties might agree that a witness can testify by remote means (Additional Facility Arbitration Rule 48(5)).

Demonstrative Exhibits (e.g. PowerPoint Presentations, charts and graphs) may be used at a hearing provided they contain no new evidence and identify the evidence on record relied on from which they are derived.