Document Type

Article

Publication Date

Fall 2023

Publication Title

Nevada Law Journal

Publication Title (Abbreviation)

Nev. L.J.

Volume

24

Issue

1

First Page

73

Abstract

Today, arbitration is broadly used for resolving civil disputes domestically and internationally. It is a subject so popular in practice that calling it an “alternative dispute resolution” may in fact be a misnomer. Regarding the taking of evidence in arbitration, the cliché is that no rules apply, and that arbitrators have the ultimate authority. In practice, too many arbitrators simply let everything in, no matter how prejudicial, cumulative, incredible, suspect, or otherwise useless, for fear that ruling out anything may lead to vacatur.
This article probes into the importance and feasibility of having evidence rules in arbitration. It argues that the lack of evidence rules in arbitration cuts two ways. While some features of arbitration, like flexibility and efficiency, favor dispensing with most rules of evidence, such standards of practice slice away at the reliability, predictability, and fairness of arbitration. In addition, when arbitral parties are from different legal traditions, there is a special need to harmonize the rules for taking evidence. Beyond these two issues, the current trend of “judicializing” or formalizing arbitration also calls for forming more rules of evidence.
If evidentiary rules are needed in arbitration for good reasons, what should, or could, those rules look like? This article brainstorms this important issue, suggests five promising perspectives, and compares them with the traditional evidence rules applied in jury and bench trials, culminating with an examination of the emerging best practice of taking evidence in arbitration: the IBA Rules on the Taking of Evidence in International Arbitration, including these rules’ strengths and limitations. The high popularity of the IBA Rules in practice proves that model evidentiary rules as soft law for parties and arbitrators could attain success. And it is now time for evidence scholars to contribute to the development of this exciting frontier.

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