UK Law and Practice Contributed by: Roger Gherson, Emma Anderson, Cong Gao, Elizaveta Rachkova and Galiya Mustafina, Gherson Solicitors LLP
8. Evidence 8.1 Collection and Submission of Evidence In UK-seated arbitrations, the general approach to the collection and submission of evidence at the pleading stage and at the hearing is governed primarily by party autonomy and tribunal discretion under the Arbitration Act 1996. The Act’s founding principle is to resolve disputes fairly, without unnecessary delay or expense, and the parties are free to agree how procedural and evidential matters are handled. Where the parties have not agreed, the tribunal decides all such matters, including the form and timing of written statements of claim and defence, and whether those pleadings may be amended. On disclosure, the tribunal decides whether any doc - uments or categories of documents should be dis - closed and produced, and at what stage. The tribunal also determines whether strict rules of evidence apply to the admissibility, relevance or weight of any mate - rial, so the ordinary court rules of evidence do not bind the arbitration unless adopted. With respect to privilege, a witness cannot be compelled to produce any document that could not be compelled in court proceedings, thereby preserving legal professional privilege and other recognised protections. In relation to witness evidence and hearings, the tri - bunal may direct whether evidence and submissions are given orally, in writing, or both. In practice, writ - ten witness statements are commonly exchanged in advance, with cross-examination taking place at the hearing, though neither is mandated by the Act itself. The court may also assist with securing the attend - ance of witnesses located in the UK under Section 43, and with preserving evidence under Section 44. 8.2 Rules of Evidence In arbitrations seated in England and Wales, the strict rules of evidence that govern domestic court litigation do not automatically apply. The Arbitration Act 1996 takes a deliberately flexible approach. Under Section 34 of the Act, it is for the arbitral tri - bunal to decide “all procedural and evidential mat - ters”, subject to any agreement the parties may have reached. This includes the power to decide whether
to apply the strict rules of evidence regarding admis - sibility, relevance or weight of evidence. The tribunal can choose to follow court-style evidence rules, adopt the IBA Rules on the Taking of Evidence or devise its own bespoke approach, as it considers appropriate for the case. This flexibility sits within a framework of fairness. Sec - tion 33 requires the tribunal to act fairly and impartially, giving each party a reasonable opportunity to present its case and respond to the case presented by the other side. The same rules of evidence apply to domestic arbi - tration as to international arbitration. Part I of the Act governs all arbitrations seated in England, Wales or Northern Ireland, regardless of whether the parties or the dispute are domestic or international. The Act con - tained separate “domestic arbitration agreement” pro - visions in Sections 85-87, but these have now been repealed by the Arbitration Act 2025. 8.3 Powers of Compulsion The tribunal may direct which documents the parties must disclose and produce, as part of its general pro - cedural and evidential powers (Section 34). If a party defaults, the tribunal may make peremptory orders, enforceable through the court. For witness attendance, Section 43 allows a party to use the same court procedures available in litigation to compel a witness to attend the tribunal to give oral testimony or produce documents, but only with the tribunal’s permission or the agreement of the other party. Under Section 44, the court has broad powers exer - cisable in support of arbitral proceedings, including the taking of witness evidence and the preservation of evidence. The tribunal can order parties to produce documents directly, but has no coercive power over non-parties. Therefore, compulsion of third-party witnesses or documents requires recourse to the court under Sec - tions 43-44. Since the coming into force of the Arbitra - tion Act 2025, the court’s support powers extend to orders against non-parties.
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