Assistance of the court in the taking of evidence

As has been indicated during the course, an arbitral tribunal does not have coercive powers. This means that, inter alia, it may, therefore, require the assistance of the national court at the seat of the arbitration in relation to the taking of evidence.

Accordingly, article 27 of the Model Law permits the arbitral tribunal to request assistance from the national court in the taking of evidence. More specifically, this power is, in effect, to assist with the taking of evidence from a non-party. The procedure is that either the tribunal itself or one of the parties (with the approval of the tribunal) may make the request to the national court. The court, in turn, may then execute that request within the parameters of its competence and according to national law and/or its rules on taking evidence.

Where a witness is unwilling to attend, the assistance of the court may be sought to obtain their attendance by witness summons. In addition, where a witness is unable to attend the tribunal, perhaps through being in another jurisdiction for the time being or on grounds of health, a court may be able to order that evidence in an admissible form is taken by deposition or by video link. In addition to obtaining the testimony of witnesses, the other common reason to have recourse to the court will be to obtain production of documents. Often, these two purposes will be rolled up in a single provision in national law. An example of such a power is contained with s 43(1) of the United Kingdom Arbitration Act 1996, which provides that “A party to arbitral proceedings may use the same court procedures as are available in relation to legal proceedings to secure the attendance before the tribunal of a witness to give oral testimony or to produce documents or other material evidence”.

However, in accordance with the underlying spirit of seeking to limit the role of the court to circumstances of necessity, such a power is only able to be exercised by permission of the tribunal or after agreement to that course of action has been reached between the parties themselves. Similarly, in Singapore the court is able to compel the attendance of a witness or the production of documents by virtue of s 13 of the International Arbitration Act, which provides that “(1) Any party to an arbitration agreement may take out a subpoena to testify or subpoena to produce documents. (2) The High Court or a Judge thereof may order that a subpoena to testify or a subpoena to produce documents shall be issued to compel the attendance before an arbitral tribunal of a witness wherever he may be within Singapore”.