Article 7 of China’s Arbitration Law stipulates that “arbitration shall be made based on true facts and relative laws to give out a fair and reasonable settlement for parties concerned”. Undoubtedly, the determination of legal facts plays a crucial role in dispute resolution, hence the widely cited adage “litigation is all about evidence”. In arbitration, evidence submission is not a mere accumulation of materials. Effective submission demands that parties and their representatives deeply understand the goal of proving “legal facts”, meticulously organise evidence, and structure it according to case needs.
Logic of proof
Legal fact is a different concept from objective fact. The purpose of evidence submitted by parties or representatives is to assist the arbitral tribunal in determining legal facts through procedural co-operation. Thus, the selection and organisation of evidence are of paramount importance.
Commonly speaking, there are two methods for organising evidence, the selection of which is often based on specifics of the case: (1) chronological sequencing; and (2) modular structuring, with each module focused on a certain issue or point of dispute. These two approaches are not mutually exclusive. For example, within an evidence module designed to prove construction quality defects by the opposing party, items may still be organised chronologically.
Submission of evidence materials in a disorganised fashion or without clear proof objectives should be avoided altogether. For instance, submitting dozens of invoices is not enough to substantiate that “the claimant fulfilled its obligation to issue invoices as per the contract”. The contractual requirements for invoicing, the issuance date and amount of each invoice, the total sum of all invoices, among others, are also details that parties must clarify.
One must bear in mind that the arbitral tribunal is not a benevolent, patient parental figure. If a party submits a large volume of disorderly evidence, forcing the tribunal to spend excessive time organising it during the hearing, the efficiency of the proceedings will inevitably suffer. Effective evidence submission requires all parties to present their narrative coherently and comprehensively in written submissions, leaving the rest to the arbitral tribunal.
Evidence standards
In evidence submission, the statement “convenience for others is convenience for oneself” holds true. Article 33(4) of the Arbitration Rules of the Beijing International Arbitration Court/Beijing Arbitration Commission (BIAC/BAC), effective from January 2022, explicitly states: “Each party shall properly bind, number and paginate the evidence it produces. The file of evidence shall be accompanied by a list stating briefly the title of each piece of evidence and the purpose of producing it. The evidence list shall be signed, sealed and dated.”
Adhering to these standards avoids unnecessary complications and misunderstandings. In cases involving voluminous evidence, the absence of accurate numbering and pagination may lead to confusion during hearings, causing delays. Conversely, properly numbered and paginated evidence not only facilitates the hearing but also allows representatives to reference specific evidence locations in written submissions, drawing the tribunal’s attention to key facts.
Furthermore, in multi-round evidence submissions, distinction should be made using submission dates and evidence numbers. If supplemental evidence must be submitted during the hearing, it should still be accompanied by a standardised evidence list. Generally, tribunals do not draft awards immediately after hearings. They revisit the case materials when drafting begins. Standardised and clearly presented evidence significantly aids the tribunal in swiftly reconstructing the facts.
Time requirements
Generally speaking, the finality of arbitration awards requires parties to seize every opportunity to submit all available evidence, avoiding irreparable consequences due to negligence or oversight. Additionally, parties must not conceal evidence, as doing so risks subsequent annulment of the award.
Parties must also observe the tribunal’s specified deadlines for evidence submission to avoid adverse consequences. The tribunal may reject overdue evidence. Even if it accepted such evidence, additional time may be granted to other parties for cross-examination, prolonging the proceedings.
In some BAC cases, tribunals issue pre-hearing notices or the Procedural Order No. 1. In international proceedings, pre-hearing conferences may be held to arrange evidence submission before formal hearings. Parties may also use Redfern Schedules or applications for document production to ensure mutual disclosure of all relevant evidence before hearings. This approach allows the tribunal to review materials thoroughly in advance, and enables parties to understand each other’s positions, clarifying disputed issues and enhancing hearing efficiency.
Evidence ambush during the hearing is a source of much difficulty for the tribunal. More damagingly, submitting critical evidence at the last minute muddles, rather than clarifies, one’s claims and violates the principles of good faith, bona fides, co-operation, and proper dispute resolution.
After the hearing, tribunals in many cases allow a window for supplemental evidence submission. Given that most arbitrations involve only one hearing, it is crucial to timely supplement evidence that addresses the tribunal’s concerns.
Default cases
In cases where the respondent defaults, more things could potentially go wrong with both proceeding and fact finding. A respondent’s absence and failure to present arguments do not constitute admission. In judicial review proceedings, grounds for setting aside an award under article 58 of the Arbitration Law include: absence of an arbitration agreement between the parties; forged evidence underlying the award; or concealment of evidence sufficient to affect a fair award.
Thus, claimants in default cases must prioritise evidence submission. Before the hearing, claimants should communicate the circumstances with the case manager. If default is likely, original evidence – especially the contract forming the basis of the case – should be prepared for the tribunal’s verification in advance.
As arbitration cases typically involve contractual disputes, the original contract is paramount. Other critical evidence for fact-finding should also be presented in original form. Note that arbitration institutions generally do not retain original evidence. Parties need only submit copies when filing, and must safeguard originals themselves after the hearing.
Peng Ke is a case manager at the Beijing Arbitration Commission/Beijing International Arbitration Court
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