Rules of Evidence in International Commercial Arbitration and Its Effects on Recognition and Enforcement of Arbitral Awards

As international business and financial market vigorously thrives, traditional civil litigation is not considered enough to meet the needs of transnational commercial disputes. International commercial arbitration hence becomes important with its special character of efficiency and flexibility. The arbitration agreement is also considered to be one of the most significant clauses in transnational contract. Comparing to civil litigation, international commercial arbitration is known as one system that allows more flexible procedure and highly respects the principle of party autonomy. However, it is just because arbitration does not impose a mandatory set of procedural rules that how to determine and conduct in the manner as parties and arbitral tribunals consider appropriate in each case remains to be an important and complex issue. Among arbitral proceedings, the procedure relating to evidence collection and investigation takes a lot of times and money, while closely influencing the final awards. As a result, how to decide and apply the appropriate rules of evidence in arbitration is a crucial question.n reality, there are many factors that may affect the determination of rules of evidence in arbitration, including the applicable laws, characteristic of the transaction in dispute, place of contract and performance, the background of parties and arbitrators, and so on. Nevertheless, inappropriate determination no matter made by parties or arbitral tribunal will lead to dispute at the stage of recognition and enforcement of arbitral awards, which eliminates incentives to use arbitration as an efficient dispute resolution method.ith the acknowledgement of the significance of international commercial arbitration in the field of transnational trade dispute resolution, and the important role of the rules of evidence in arbitral proceedings, this paper aims to collect arbitration laws, procedural rules, cases and critic opinions relating to the evidential issues in international commercial arbitration, to analyze the current situation of the application of rules of evidence, and further figure out its tendency. In addition, this paper also tries to help assaying the current opinion on the application of evidential rules in the perspective of the cost control and management. nternational jurisprudence produced by case law also serves as a baseline of the fundamental procedural rights under the principle of due process, which closely related to grounds for refusal of enforcement under the New York Convention. This paper also addresses the appropriateness of lex loci arbitri imposed in the ground for refusal of enforcement and makes further suggestions on this matter to solve the existing problems. By analyze the above two grounds, it is hoped to establish a basic structure in selecting appropriate rules of evidence and raise some elements which are needed to be noticed, to avoid obstacle at the stage of recognition and enforcement of arbitral awards. Finally, this paper reviews the arbitration law and the practice of Taiwan on the basis of such structure to make suggestions on explanation and development of the arbitration system in the future.