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Chapter 12

The Evidentiary Hearing

John Gardiner, Barry H. Garfinkel, & Gunjan Sharma

§ 12:1 Evidentiary Hearings in Arbitration Compared to Trials

§ 12:2 Structure of the Evidentiary Hearing
§ 12:2.1 Typical Stages
§ 12:2.2 Allocation of Time and the “Chess-Clock” Method
§ 12:2.3 Logistics, Including Transcription and Translation Services
§ 12:3 Opening Statements
§ 12:3.1 Content and Purpose
§ 12:3.2 Compared to Opening Statements in Court
§ 12:3.3 Responding to Arbitrator Questions
§ 12:3.4 Use of Demonstratives
§ 12:4 Fact Witnesses
§ 12:4.1 General Observations
§ 12:4.2 Written Statements As Direct Testimony
§ 12:4.3 Infrequent Use of Depositions
§ 12:4.4 Cross-Examination
§ 12:4.5 The Tribunal’s Involvement in Examination
§ 12:5 Expert Witnesses
§ 12:5.1 Structure of Examination
§ 12:5.2 Application of Daubert and Frye Standards
§ 12:5.3 Independence and Impartiality
§ 12:5.4 Witness Conferencing
§ 12:5.5 Tribunal-Appointed Experts
§ 12:6 Some Evidentiary Matters
§ 12:6.1 Flexible Rules of Evidence
§ 12:6.2 Admission of Documents
§ 12:7 Closing Arguments
§ 12:8 Post-Hearing Briefs and the Close of Proceedings
§ 12:9 Conclusion

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§ 12:1 Evidentiary Hearings in Arbitration Compared to

Trials
Although evidentiary hearings in large arbitrations increasingly
bear many similarities to trials in courts of law, the two nevertheless
are different in several important respects.
Understanding and appreciating the difference between the two
types of hearings is a key requirement of effective advocacy in arbitra-
tion. While the remainder of this chapter discusses many specific dif-
ferences between arbitration hearings and court trials, some general
observations can be made here as well.
First, and rather obviously, there is no jury in an arbitration. As a
result, the forms and styles of presentation sometimes directed toward
the jury—such as folksiness, simple language, and (sometimes) bom-
bast, among others—generally may be less useful.
Second, arbitrators often have specialized experience in the indus-
try or subject matter of the dispute. Experienced arbitrators are not
blank slates and will be informed by their considerable prior experi-
ence in the field; this means that counsel should study the arbitrators’
prior work experience, cases, and qualifications well before the hear-
ing, to better understand how the arbitrators may approach the dis-
pute currently before them.
Third, counsel who are used to standing when addressing a court
need to become comfortable addressing a tribunal while seated. Only
a very small minority of tribunals allow addresses from a lectern.
Having said that, arbitral hearings and trials have one defining
feature in common: It is vitally important to be effective during the
hearing, which ordinarily is critical to the outcome of the dispute.

§ 12:2 Structure of the Evidentiary Hearing

§ 12:2.1 Typical Stages
The various stages and sequence of the evidentiary hearing are
usually established during the prehearing conferences. In general
terms, those stages are:
• Opening statements, in which the claimant generally goes first;
• Testimony from claimant’s fact witnesses, followed by the
respondent’s fact witnesses;1

1. As discussed below, in certain arbitrations, particularly international

arbitrations, a witness’s written statement serves as his or her testimo-
ny-in-chief, and the witness’s live testimony therefore begins with his or
her cross-examination. See section 12:4.2.

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The Evidentiary Hearing § 12:2.2

• Testimony from claimant’s expert witnesses, followed by the

respondent’s expert witnesses;
• Closing arguments, in which the claimant generally goes first
again.
In addition, at the beginning and close of each day of the hearing,
the tribunal may address outstanding and new procedural issues that
have arisen.
While this is a common structure for an arbitration hearing, it is
not set in stone. In keeping with the flexible nature of arbitration, the
parties and the tribunal can deviate from this structure when they
consider it appropriate. For example, the tribunal may hear witnesses
in the order it prefers, or even out of order (to accommodate witness
availability). The tribunal may also choose to dispense with opening
or closing statements or post-hearing briefing, although most tribu-
nals will consult with the parties before doing so.

§ 12:2.2 Allocation of Time and the “Chess-Clock”

Method
Arbitration hearings (especially in international arbitrations) may
employ the “chess-clock” method, “under which each party . . . is
allocated a specified amount of time, typically a pro rata share of the
total hearing time reserved, to present its case.”2 Under a strict chess-
clock method, “[a]ll time used by a party—for example, in examining
or cross-examining witnesses, making or responding to objections,
presenting arguments or statements, setting up audiovisual equip-
ment, or locating witnesses wandering the halls—is charged against
that party’s allotted time,” which is counted by the minute during the
hearing.3 In some cases, reasonable deviations should be made from
the chess-clock method when it leads to onerous requirements. For
example, parties should be granted a minimum amount of time, even
if another party does not use all its allotted time. The chess-clock
method guarantees each party an opportunity to take its full pro rata
allocation of time; it does not permit a party to minimize the time it
uses and then seek to limit the time allotted for the other side.
In lieu of the chess-clock method, the tribunal or the parties
may establish a schedule for each opening and closing statement,
and for each witness’s direct and cross-examination (and redirect

2. Henri C. Alvarez et al., The Hearing on the Merits, in The College of

Commercial Arbitrators Guide to Best Practices in Commercial
Arbitration, 241, 265 (James M. Gaitis et al. eds., 4th ed. 2017).
3. Id.

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examination), and require the parties to adhere to that schedule.4 In

such a case, reasonable allotments and adjustments may be made for
time spent addressing tribunal questions and comments.

§ 12:2.3 Logistics, Including Transcription and

Translation Services
Another aspect of the evidentiary hearing is arranging for its logis-
tics, such as organizing a physical site for the hearing; retaining a
transcriptionist; hiring a simultaneous translator, if needed; and
other logistical details. Where the arbitration is administered (such
as by the American Arbitration Association (AAA), the International
Institute for Conflict Prevention and Resolution (CPR), or JAMS), the
administering institute may assist the arbitrators and parties in mak-
ing some of these arrangements. Counsel should also be prepared,
however, to make these arrangements as necessary. Many litigation
service providers also have experience working in arbitration hear-
ings. For example, in New York, the New York International Arbi-
tration Center is a state-of-the-art facility designed for hearings in
international arbitration.

§ 12:3 Opening Statements

§ 12:3.1 Content and Purpose
At the outset of the hearing, counsel for each of the parties gener-
ally makes an opening statement. For counsel, the opening statement
provides an opportunity to (1) clarify what counsel considers to be
the pivotal issues in the case; (2) summarize the evidence presented
in a light most favorable to the client; (3) establish the legal concepts
that support the client’s position; and (4) rebut the opponent’s most
prominent arguments.
For the arbitrators, opening statements not only refresh their rec-
ollection of matters previously briefed and documentary evidence pre-
viously introduced, but also serve as a guide to what to expect during
the hearing. As one commentator succinctly puts it, “[y]our opening
statement is an opportunity for you to let the arbitrator know what
to expect. It provides a structure and a theme for your case.”5

4. See id.
5. Emma Leheny, Presenting Your First (Or 100th) Arbitration: The Day of
Hearing 4, Am. Bar Ass’n Lab. & Emp. L. Sec., 3d Ann. CLE Conf.
(Nov. 4–7, 2009), [Link]
rials/data/papers/[Link].

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§ 12:3.2 Compared to Opening Statements in Court

The form of an opening statement in most arbitrations will differ
from the “classic” approach to an opening statement found in a court
of law. As an example of one difference:

Arbitrators need not be concerned with enforcing the rigid rule

often applied in jury trials that counsel’s opening must be a
statement of the evidence expected during the hearing but not
an argument. Experienced arbitrators can readily distinguish
evidence from argument.6

Moreover, there may already have been significant prehearing brief-

ing on points of fact and law, including written witness statements
and expert reports. As such, the classical opening statement refrain
that “the evidence will show that” or “Mr. X will testify that” is not
usually deployed in arbitration.
Opening statements in arbitration can differ from those in a court
of law, especially those addressed to a jury, in other ways as well. For
example, explicit appeals to emotion and prejudice are less likely to
be effective on sophisticated arbitrators, as is “table thumping.” (This
does not mean, however, that counsel should fail to advocate for its
client in a vigorous manner.) With respect to the summary of expert
evidence, counsel should investigate whether arbitrators have specific
experience on the matters subject to expert testimony, and calibrate
the presentation of that evidence accordingly.

§ 12:3.3 Responding to Arbitrator Questions

Counsel should not be surprised if the tribunal is familiar with the
details of the case and asks questions during the opening statement.
As with any oral argument, counsel should prepare the opening in a
flexible manner, permitting it to address the tribunal’s questions, if
any, as they come. Reading from a script can be less effective. At least
one commentator has suggested avoiding the phrases “I will come to
that later,” or “that will become clear later,” in responding to tribunal
questions: an arbitrator himself, that commentator explains:

I am too often disappointed when it doesn’t become clear later.

There may be good reasons for occasionally finessing an arbi-
trator’s attempts to find out where you are going or what you
mean . . . . Unless you are an acknowledged master strategist,

6. Alvarez et al., supra note 2, at 286–87.

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§ 12:3.4 ARBITRATING COMMERCIAL DISPUTES IN THE U.S.

however, you should be concerned when this is your too-frequent

response to the chair’s questions.7

Do not underappreciate the strategic benefit of tribunal questions;

they provide insight into the arbitrator’s approach to your client’s
position. “Welcome tribunal questions. . . . Every question is a win-
dow into what the arbitrator is thinking, and a clue to whether he is
receiving on the same frequency on which you are broadcasting.”8

§ 12:3.4 Use of Demonstratives

Demonstratives are also frequently used during the opening
statement. The ability to use demonstratives, and when they will be
exchanged between the parties, is usually established before the hear-
ing begins.
Counsel should not underrate the effectiveness of demonstrative
exhibits as a part of the presentation of a case. Tribunals often refer to
well-constructed demonstratives as part of their deliberations. In this
respect, counsel should spend the time necessary, before the hearing,
to prepare slides that
• are attractive, are easy to read (in a reasonably large font), and
use graphics and pictures in addition to text;9
• reflect and streamline the actual issues in dispute;
• not only summarize the factual issues, but also outline the
legal arguments the tribunal will need to consider;
• advance the arguments and testimony that will arise (or did
arise) during the hearing; and
• are supported by specific references to factual exhibits and
written witness testimony, as well as quotations from relevant
briefs, case law, statutes, regulations, and other sources of law.
At the same time, demonstrative exhibits should not distract the
tribunal from counsel’s oral submissions. This can often be achieved
by providing an engaging presentation, while also turning off Power-
Point slides except when the slides are being referred to.

7. Morley R. Gorsky, Presentation Skills: A Quick Reference Guide for

Advocates, in American Arbitration Association Handbook on
Commercial Arbitration, 301, 303 (2d ed. 2010).
8. Franz T. Schwarz, The Guide to Advocacy: Opening Submissions, Global
Arb. Rev. (2016), [Link]
opening-submissions#12 (statement of John Townsend).
9. Standardized PowerPoint templates prepared by law firm marketing
departments are not always the best form for hearing demonstratives,
whatever their versatility for business development.

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§ 12:4 Fact Witnesses

§ 12:4.1 General Observations
After opening statements, the evidentiary hearing generally turns
to the examination of each party’s fact witnesses. The claimant’s fact
witnesses are usually examined first, followed by the respondent’s
fact witnesses.
The examination of witnesses in arbitration is similar to, but not
exactly like, examining witnesses in litigation. There is no jury; as
a result, it may be useful to adopt a neutral tone with the opposing
party’s witness, unless the witness gives you a good reason to change
course.
Moreover, the time available for examination in an arbitration may
be much more limited than in a litigation. So, counsel may find it nec-
essary to be more direct and to the point, and to concentrate on the
most essential areas.

§ 12:4.2 Written Statements As Direct Testimony

In some arbitrations, especially international arbitrations, witnesses
have already provided witness statements as part of a party’s prehear-
ing pleadings. In those cases, the witness’s written statement usually
stands as his or her “direct testimony,” so that little or no direct exam-
ination is required.10 As a result, when the witness takes a seat at
the arbitration, he or she is immediately subjected to cross-examina-
tion by opposing counsel. That cross-examination may or may not be
limited to the matters identified in the witness statement. Redirect
examination is then limited to the matters raised in cross-examination.
In all events, as with oral direct evidence, witness statements
should present an “honest account of the relevant events in a man-
ner that provides the strongest possible support for the case, [that]

10. The practice of replacing direct testimony with a written affidavit has
recently been gaining traction for bench trials in some courts. For exam-
ple, the Rules of the Commercial Division of the Supreme Court of the
State of New York were recently amended to provide that “[t]he court
may require that direct testimony of a party’s own witness in a non-jury
trial or evidentiary hearing shall be submitted in affidavit form, provided,
however, that the court may not require the submission of a direct testi-
mony affidavit from a witness who is not under the control of the party
offering the testimony. The submission of direct testimony in affidavit
form shall not affect any right to conduct cross-examination or re-di-
rect examination of the witness.” N.Y. Comp. Codes R. & Regs. tit. 22,
§ 202.70, Rule 32-a.

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at the same time minimizes the witness’s vulnerability to attack on

cross-examination.”11

§ 12:4.3 Infrequent Use of Depositions

For many litigators, a striking aspect of arbitration is that deposi-
tion practice is less common than in litigation.12 For example, the
JAMS Comprehensive Arbitration Rules provides that a party may
take only “one deposition of an opposing Party or of one individual
under the control of the opposing party.”13 In many other arbitrations,
there are no depositions at all (they are virtually unheard of in inter-
national arbitration). As a result, the hearing may be the first time
that counsel actually meets the opposing party’s witnesses, much less
examines them.

§ 12:4.4 Cross-Examination
The idea of cross-examining a witness whose demeanor and testi-
mony you have not already evaluated in deposition, or assessed during
the witness’s direct testimony, may seem daunting. It need not be.
Any prejudice created by the absence of a deposition can be overcome
if you take the time to adequately prepare for cross-examination based
on the record of the arbitration to date, including, in particular, any
written witness statements.
The absence of a deposition or direct examination can have unin-
tended benefits as well: For many fact witnesses in an arbitration,
opposing counsel’s cross-examination will be the first time that they
have had to sit in front of a decision-maker, in a formal proceeding,
and be exposed to rigorous testing of what they have to say. The wit-
ness’s understandable nervousness may enable the cross-examiner to
elicit more truthful and frank answers than appear on the face of the
witness statements.
In addition, the formal objections to questions in examination
found during trials ordinarily do not apply in an arbitration. As one
commentator has noted, unlike in arbitration, cross-examination in
court proceedings involves “operating within highly restrictive envi-
ronments, where principles and practices have evolved over centuries
into hard-and-fast rules setting out what advocates can and cannot

11. John Fellas, Preparing Witness Statements in International Arbitration,

N.Y.L.J., Oct. 18, 2017, [Link]/newyorklawjournal/sites/newyorklaw
journal/2017/10/18/1019fellas-p3-preparing-witness-statements-in-
international-arbitration/.
12. See chapter 9.
13. JAMS Comprehensive Arbitration Rules and Procedures R. 17(b)
(effective July 1, 2014) (emphasis added) [hereinafter JAMS Rules].

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do, which explains the myriad objections available to opposing advo-

cates and the endless stories of shame-faced counsel following spec-
tacularly failed cross-examinations.”14
Cross-examination in arbitration generally does not have to be per-
formed with such formality. Nevertheless, a sophisticated tribunal
will endeavor to control the conduct of examination if the examiner
is indecorous. The tribunal’s goal will be to ensure that examination
stays on subjects relevant to the arbitration.

§ 12:4.5 The Tribunal’s Involvement in Examination

In some arbitrations, the tribunal may take a more active role in
examination than a judge conducting a jury trial or even one conduct-
ing a bench trial. In fact, counsel should not be surprised if the arbi-
trators ask questions during the examination. They may do this, for
instance, to permit the witness to correct testimony, or to seek clari-
fication or further information on a topic of interest to the arbitrators.
Arbitrators may also interject when counsel’s line of questioning does
not seem relevant. While interrupting counsel’s examination may
not be the best practice for arbitrators, arbitrators still do it, and coun-
sel should be prepared to handle such interruptions.

§ 12:5 Expert Witnesses

§ 12:5.1 Structure of Examination

Following the examination of fact witnesses, the parties’ expert
witnesses—or witnesses with specialized expertise who can opine
on various aspects of the dispute, such as accounting, construction
engineering, and damages issues (among many others)—will also be
called for examination.
These expert witnesses will have previously submitted their reports,
and perhaps rebuttals to the other side’s expert reports, prior to the
hearing. The tribunal and the parties may therefore agree to forgo the
direct examination of experts. In some arbitrations, each expert may
instead be provided time to provide a short presentation to the tribu-
nal (often with demonstratives) that explains the position already set
forth in his or her report.
Following the expert’s direct testimony (or initial presentation, if
any), the expert will then be cross-examined by opposing counsel,
and subject to redirect examination. In certain arbitrations, time may

14. Stephen Jagusch QC, Cross-Examination of Fact Witnesses: The Common

Law Perspective, Global Arb. Rev., [Link]
chapter/1072869/cross-examination-of-fact-witnesses-the-common-law-
perspective (last visited Sept. 28, 2017).

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be set aside for the arbitrators to pose their own questions to the
experts as well. As with fact witnesses, there may not have been any
depositions of expert witnesses.15 It is important for counsel to ensure
that an expert witness is prepared to testify effectively, and is ready
for cross-examination.
While this is a usual structure for expert testimony in an arbitra-
tion, it is not the only structure. For example, as discussed below, the
arbitrators may find it more useful to have all of the experts testify
in a group.16

§ 12:5.2 Application of Daubert and Frye Standards

Some arbitrators will consider whether an expert is qualified to
testify by applying the standards for admissibility under the Federal
Rules of Evidence as set forth in Daubert v. Merrell Dow Pharmaceuti-
cals17 or, where relevant, state evidentiary rules based on the standards
set out in Frye v. United States.18 However, there is no requirement
that they do so, and arbitrators often forgo the formality of deciding
Daubert or Frye objections.19
Even though the formal strictures of Daubert and Frye may not
apply in arbitration, it goes without saying that experts nevertheless
should be qualified to present the expert testimony they are propound-
ing. Counsel should carefully assess an expert’s training and qualifi-
cations against the testimony they are offering. When the qualifica-
tions of the opposing party’s expert do not appear sufficient to support
the proffered testimony, that fact may be raised to the tribunal or
during cross-examination—if not to exclude the evidence, at least to

15. See section 12:4.2.

16. See section 12:5.4.
17. Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993). See, e.g.,
Marketstar Corp. v. Prosper Bus. Dev. Corp., No. 2:07-CV-00132-DB,
2009 WL 2929390, at *4 (D. Utah Sept. 8, 2009) (noting that arbitrator
had accepted damages expert’s testimony based on standards set forth in
Daubert).
18. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
19. See, e.g., MPJ v. Aero Sky, L.L.C., 673 F. Supp. 2d 475, 501 (W.D. Tex.
2009) (“[T]he AAA’s Commercial Rules of Arbitration do not require a
party sponsoring an expert witness necessarily to satisfy Daubert, as
conformity to the rules of evidence is not always necessary.”); see also
Morrill v. G.A. Wright Mktg., Inc., No. 04-cv-01744-MSK-BNB, 2006 WL
2038419, at *4 (D. Colo. July 18, 2006) (denying application for vacatur
of an arbitration award on the grounds that the arbitrator had permitted
expert testimony that arguably violated Daubert’s standards because “the
decision of whether to receive and consider [the expert’s] testimony was
one which was necessarily confined to the arbitrator ’s discretion”).

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go to its weight. In this respect, “[a]lthough arbitrators are not bound

by Daubert, the principles in Daubert provide helpful guidance.”20

§ 12:5.3 Independence and Impartiality

There is a developing norm in arbitration, especially international
arbitration, that experts should be impartial and independent from
the parties.21 In addition, numerous professional organizations require
experts to maintain their independence and impartiality when pro-
viding testimony.22
Challenging an expert’s independence and impartiality can be an
effective way of decreasing the weight the tribunal gives to the expert’s
testimony. Counsel should therefore investigate any potential links
between an expert and the party (or counsel) that is proffering him

20. Jay E. Grenig & Rocco M. Scanza, Case Preparation and Presen­
tation: A Guide for Arbitration Advocates and Arbitrators
§ 10:10 (2013).
21. See IBA Rules on the Taking of Evidence in International
Arbitration art. 5(2)(a) (2010) (requiring the expert to provide “a state-
ment regarding his or her present and past relationship (if any) with
any of the Parties”); Chartered Inst. of Arbitrators, Protocol for
the Use of Party-Appointed Expert Witnesses in International
Arbitration, art. 4(1) (2007) (“An expert’s opinion shall be impartial,
objective, unbiased and uninfluenced by the pressures of the dispute reso-
lution process or by any Party.”); id. art. 4(4)(b) (expert must disclose “any
past or present relationship with any of the Parties”); Giovanni de Berti,
Experts and Expert Witnesses in International Arbitration: Adviser, Advocate
or Adjudicator, 2011 Austrian Y.B. of Int’l L. 53, 57 (“Actually, the
trend that has been developing in international arbitration practice,
and has been incorporated in successive editions of international arbi-
tration rules, shows that a more stringent attitude has developed with
regard to the use of party-appointed experts, requesting that even these
experts comply with the requirements of independence and impartial-
ity requested of the tribunal-appointed-experts.”); 2 Gary B. Born,
International Commercial Arbitration 1862 (2009) (stating that “[a]t
a minimum . . . [an expert’s] failure to demonstrate independent pro-
fessional judgment will seriously impair their credibility”; expert must
provide a “statement of his or her independence from the Parties, their
legal advisors and the Arbitral Tribunal”).
22. See, e.g., Nat’l Soc’y of Prof’l Eng’rs, Code of Ethics of Engineers,
R. 3(a) (2007), [Link]/sites/default/files/resources/pdfs/Ethics/Code
ofEthics/[Link] (“Engineers shall be objective and truthful
in professional reports, statements, or testimony.”); AICPA, Code of
Professional Conduct R. 1.200.001 (2014), [Link]
conduct/ethicsresources/[Link] (stating that “[a] member in public
practice shall be independent in the performance of professional services
as required by standards promulgated by bodies designated by Council”;
such services include providing testimony as an expert witness). Numerous
other professional organizations have similar rules.

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or her, or any other factors that may affect an expert’s independence

and impartiality. The most obvious example is when a party to an
arbitration relies on an in-house expert, such as its own engineer,
to provide expert testimony. But it can also include experts who are
consistently hired by a particular law firm, or consistently testify for
a certain category of clients. In addition, counsel should investigate
the expert’s prior work, as well as any publicly available judicial and
arbitral decisions that have discussed the expert’s testimony.

§ 12:5.4 Witness Conferencing

Another feature of arbitration that is not used in courtroom set-
tings is expert witness conferencing (or “hot-tubbing”), “a procedure
for the joint presentation of expert testimony.”23 This procedure can
take various forms, but generally involves “hav[ing] all experts on the
same subject testify at the same time and answer seriatim the same
questions put by counsel and then by the arbitrators.”24 In some cases,
it may occur after the experts have been examined in a more tradi-
tional manner.
The purpose of expert witness conferencing is to allow the experts
to respond to each other’s testimony and, in doing so, to streamline
the key issues in dispute between them. Expert witness conferencing
has recently become more popular in both domestic and international
arbitration.
Whether expert witness conferencing will be used should be decided
before the hearing begins. Thereafter, counsel should carefully pre-
pare the expert for this (somewhat) novel approach to expert testimony.
Nevertheless, it has been correctly noted that “[w]ith experts who
have a solid delivery and ability to react, discuss and argue, this pro-
cedure may be worthwhile.”25

§ 12:5.5 Tribunal-Appointed Experts

Finally, in rare cases, an arbitral tribunal may exercise its power to
appoint its own expert on a particular topic.26 The parties are usually
consulted when a tribunal exercises that power. The parties generally

23. Gilbert Samberg, Pros and Cons of Hot-Tubbing in International Arbitration,

Law360 (Dec. 1, 2016), [Link]/articles/867611/pros-and-cons-
of-hot-tubbing-in-international-arbitration.
24. Alvarez et al., supra note 2, at 257.
25. Hot Topic: Expert Witnesses in Arbitration, Corp. Disps. Mag., Oct–Dec.
2012, at 9 (statement of Julie Bédard).
26. IBA Rules on the Taking of Evidence in International Arbitration
art. 6(1) (2010) (“The Arbitral Tribunal . . . may appoint one or more
independent Tribunal-Appointed Experts to report to it on specific issues
designated by the Arbitral Tribunal.”).

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are permitted to comment on the final reports or determinations of

those experts, sometimes by presenting their own expert testimony.
Nonetheless, the opinion of a tribunal-appointed expert usually will
be given significant weight by the tribunal.

§ 12:6 Some Evidentiary Matters

§ 12:6.1 Flexible Rules of Evidence
In an arbitration, questions as to admissibility, relevance, materi-
ality, and privilege are reserved for the arbitrators’ determination.27 In
practice, most arbitrations are not conducted under the formal rules
of evidence found in a court of law, unless the parties have expressly
stipulated otherwise. At least one commentator has suggested that
“[a]rbitrators . . . are bemused by litigators who approach arbitration
as a shadow judicial forum with the expectation that arbitrators are
to be impressed by frequent and expert citations to court rules such
as the Federal Rules of Evidence.”28
As a result, some forms of evidence that might be excluded from
a trial in a court of law—such as hearsay—may be accepted as evi-
dence in an arbitration. Rather than exclude such evidence entirely,
arbitrators may instead assess its weight and credibility as part of
their deliberations. “The fact that arbitrators may not be bound by the
conventional rules of evidence in civil cases does not mean that those
rules will not be followed or given significant consideration . . . .
[E]ven in some civil court cases, certain evidence that is objected to
will be heard subject to weight.”29
In international arbitrations, tribunals (in many cases, with the
parties’ consent) may use the 2010 IBA Rules on the Taking of Evi-
dence in International Arbitration as a guide to evidentiary issues.30
Article 9 of the IBA Rules provides guidelines for the admissibility
and assessment of evidence, while affirming that the tribunal retains

27. See American Arbitration Association, Commercial Arbitration

Rules and Mediation Procedures R. 34 (effective Oc. 1, 2013) [herein-
after AAA Rules]; International Institute for Conflict Prevention
and Resolution, 2013 Administered Arbitration Rules R. 12.2
(effective July 1, 2013) [hereinafter CPR Rules].
28. Alfred G. Feliu, Evidence in Arbitration: A Guide for Litigators, in
American Arbitration Association Handbook on Commercial
Arbitration 267, 267 (2d ed. 2010).
29. Morley R. Gorksy, Presentation Skills: A Quick Reference Guide for
Advocates, in American Arbitration Association Handbook on Com­
mercial Arbitration 301, 309–10 (2d ed. 2010).
30. IBA Rules on the Taking of Evidence in International Arbitra­
tion (2010).

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§ 12:6.2 ARBITRATING COMMERCIAL DISPUTES IN THE U.S.

the power to “determine the admissibility, relevance, materiality and

weight of” the evidence presented to it.31
That said, arbitrators are likely to apply some rules of evidence more
rigorously than others, including the rules governing attorney-client
and attorney work product privileges. Some arbitration rules, in fact,
require the arbitral tribunal to give effect to these privileges.32

§ 12:6.2 Admission of Documents

In contrast to litigation, the formal rules of document authen-
tication are not applied in arbitration. Instead, provided that docu-
ments have formed part of the prehearing pleadings or are part of the
joint list of exhibits that is agreed to by the parties before the hearing
occurs,33 counsel may usually refer to the documents during the arbi-
tration hearing without the need to establish provenance or otherwise
authenticate them. This is because one of the hallmarks of arbitration
is to streamline the presentation of evidence by avoiding the rigorous
formalities found in litigation.
In certain arbitrations, opposing counsel may still dispute the authen-
ticity of specific exhibits when they are presented. However, some pre-
hearing procedural orders and arbitration rules provide that objections
to the authenticity of a document should be made before a hearing,
and this is usually good practice.34

§ 12:7 Closing Arguments

At the close of the hearing, each party is usually afforded an oppor-
tunity to give a closing argument (or closing statement, as it is com-
monly referred to in arbitration). In certain cases, closing arguments
may occur after the post-hearing briefs are submitted.

31. Id. art. 9(1).

32. See, e.g., CPR Rules, supra note 27, R. 12.2 (“The Tribunal is not
required to apply any rules of evidence used in judicial proceedings, pro-
vided, however, that the Tribunal shall apply any lawyer-client privilege
and work product immunity.”) (emphasis added); AAA Rules, supra
note 27, R. 34 (effective July 1, 2013) (“The arbitrator shall take into
account applicable principles of legal privilege, such as those involving
the confidentiality of communications between a lawyer or client.”)
(emphasis added); JAMS Rules, supra note 13, R. 22(d) (“Strict confor-
mity to the rules of evidence is not required, except that the Arbitrator
shall apply applicable law relating to privileges and work product.”)
(emphasis added).
33. See section 8:4.15.
34. See, e.g., JAMS Rules, supra note 13, R. 16(g) (preliminary conference
should address “the resolution of the admissibility of exhibits”).

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The Evidentiary Hearing § 12:7

“The purpose of the closing statements is to draw conclusions from

the witness evidence and to sum up each party’s case.”35 A closing
statement should therefore (1) streamline the legal and factual issues
that remain in dispute; (2) seek to establish, from both the docu-
mentary evidence and witness testimony, the party’s positions and
rebut the position taken by the opponent; and (3) lay out the relief the
party should be granted.
Closing statements should also be adapted to what happened during
the hearing. A cogent summary of witness testimony will refresh the
arbitrators’ recollection of important testimony right before deliber-
ations begin. In addition, counsel should consider and address any
questions that the arbitrators raised during the proceeding. The arbi-
trators may also direct the parties to address specific issues in their
closing arguments.
By the end of the hearing, some arbitrators may feel sufficiently
comfortable with the record to request that the parties forgo clos-
ing argument. Where possible, counsel should consider resisting such
a request. “Final argument is sometimes the last and some say the
most important opportunity for advocacy by counsel contending for
different outcomes in a matter that may have great consequences,
financial or otherwise, for their clients.”36 Through closing argument,
counsel can be sure to tie up all the loose strands that emerged during
the hearing, including the tribunal’s concerns and questions.
Finally, at the close of the hearing, the arbitrators may ask the
parties if they have any objections to the way the hearing was con-
ducted. “Failure to raise an issue in an arbitration proceeding waives
the issue in a confirmation or enforcement proceeding [in court],” or
on a vacatur application.37 To preserve an objection to the conduct of

35. Steven P. Walker & Iain K. Clark, Pleading in Arbitration: A

Practitioner’s Guide § 12-18 (2012).
36. Alvarez et al., supra note 2, at 287.
37. Am. Nursing Home v. Local 144 Hotel, Hosp., Nursing Home & Allied
Servs. Union, No. 89 Civ. 1704 (DNE), 1992 WL 47553, at *4 (S.D.N.Y.
Mar. 4, 1992); see also Oracle Corp. v. Wilson, 276 F. Supp. 3d 22, 31–32
(S.D.N.Y. 2017) (“[D]uring the Conference Call, Oracle expressly turned
down an opportunity to object to the procedure the Arbitrator proposed
to follow, the same procedure which Oracle now decries as improper. The
notes of the Conference Call reflect that the Arbitrator specifically asked
‘each side to raise any objections to issue a decision based on [Wilson]’s
in person testimony at the August 30th in-person hearing and the papers
submitted to the Arbitrator.’ The notes do not show that Oracle made
any objections, but rather, state that Oracle’s counsel waived the opportu-
nity to cross-examine Wilson.”) (footnote and citations omitted), appeal
withdrawn, 2017 WL 8289590 (2d Cir. Dec. 27, 2017).

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§ 12:8 ARBITRATING COMMERCIAL DISPUTES IN THE U.S.

the hearing, counsel likely should make that objection formally (and
always respectfully) during the hearing or at its close.

§ 12:8 Post-Hearing Briefs and the Close of Proceedings

At the close of the hearing, the tribunal may request post-hearing
briefs and replies from the parties. The tribunal and the parties will
establish a schedule for those submissions and, in certain cases, page
limits.
It has been correctly noted that

[t]he key to drafting an effective closing submission is being able

to persuasively tie up all of the strands of the case and make it
easy for the arbitral tribunal to see the logic of your case and
to assist them in writing their award. These briefs will contain
detailed references to the transcript which are the notes of the
witness testimony, exhibits and pleadings, etc. which support
their factual and legal pleaded cases, and which entitle the parties
to the relief sought; and submissions as to why the arbitral tribu-
nal should find in favour of a party.38

In essence, the post-hearing briefs should provide a template for

the tribunal as it writes an award in your client’s favor.
In many cases, the arbitrators provide the parties with a list of ques-
tions or topics that they would like addressed in those post-hearing
briefs. The post-hearing briefs then address those questions and top-
ics, in addition to any other items counsel wants to bring to the arbi-
trators’ attention.
After the post-hearing briefs (if any) are submitted, the arbitrators
may then formally close the arbitration proceedings altogether. The
closure of the arbitration proceeding marks the moment after which
(absent compelling circumstances) the arbitrators no longer hear new
evidence or argument, and instead deliberate and draft the award.
Before formally closing the arbitration proceeding, the arbitrators will
likely carefully consider if they need to hear anything further from
the parties.

§ 12:9 Conclusion
The evidentiary hearing in arbitration can differ from a trial in
sometimes significant ways. Acknowledging and adapting to these
differences leads to more effective advocacy. Nevertheless, counsel
should not forget the core and common purpose of both a trial and
an arbitration hearing: to clarify and expand on evidence and expert

38. Walker & Clark, supra note 35, at 335.

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opinions, present frank and trustworthy lay witness testimony, pro-

vide cogent explanations of the law, rebut opposing counsel’s case,
and, in the end, convince the tribunal to give your client the relief it
is seeking.

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