1. Collection of Evidence in Commercial Arbitration
1.1. What are the differences between evidence in civil proceedings and in arbitral proceedings?
The collection of evidence in arbitral proceedings must comply with the provisions of the Law on Commercial Arbitration 2010 and the procedural rules of the arbitral institution chosen by the parties. Article 46 of the Law on Commercial Arbitration 2010 expressly stipulates the parties’ obligation to provide evidence as well as the arbitral tribunal’s authority to request the collection of evidence. In certain necessary circumstances, particularly when the arbitral tribunal encounters obstacles beyond its competence, the 2015 Civil Procedure Code may be applied by reference, allowing the arbitral tribunal to submit a written request to the Court for assistance in collecting evidence.
The fundamental difference between arbitral proceedings and civil proceedings lies in the jurisdiction of the dispute-resolution authority.
In the Court, judges have the authority to actively collect evidence, apply coercive measures, request expert examinations, or require agencies and organizations to provide documents (pursuant to the 2015 Civil Procedure Code).
In arbitration, evidence is primarily provided voluntarily by the parties; the arbitral tribunal does not possess coercive powers like the Court but is limited to assessing and evaluating the evidence submitted.
In addition, there are several other notable differences:
Source of Evidence: The Civil Procedure Code provides strict regulations and an exhaustive list of lawful types of evidence; in contrast, the Law on Commercial Arbitration adopts a more flexible approach, accepting various forms of documents, electronic data, commercial customs, and international trade practices.
Burden of Proof: In both mechanisms, the parties bear the burden of proof; however, in arbitration, this responsibility is heavier since the arbitral tribunal seldom takes the initiative to collect evidence.
Evaluation of Evidence: Courts must assess evidence objectively, comprehensively, and in accordance with the law, whereas arbitral tribunals enjoy greater discretion in evaluating evidence, provided that fairness and the parties’ agreement are maintained.
Coercive Power: Courts operate with the support of state authority, enabling them to enforce measures for evidence collection; arbitral tribunals, however, must rely on court assistance when the collection of evidence exceeds their competence (Article 46 of the Law on Commercial Arbitration).
Accordingly, the collection of evidence in arbitral proceedings is characterized by flexibility, autonomy, and conformity with international commercial practices, yet remains limited by the tribunal’s jurisdiction. Therefore, when difficulties arise, the parties or the arbitral tribunal may seek court assistance to ensure procedural efficiency and fairness.
1.2. The Authority of Arbitrators to Collect Evidence
In arbitral proceedings, arbitrators have the authority to request the parties to provide documents and evidence, conduct on-site inspections, seek expert opinions, order asset valuation, summon witnesses, or consult specialists to clarify the matters in dispute. However, unlike judges of the Court, arbitrators do not possess coercive power to compel agencies or organizations to produce documents. When the collection of evidence exceeds their competence, the arbitral tribunal or arbitrators may submit a written request to the Court for assistance pursuant to Article 46 of the Law on Commercial Arbitration 2010.
1.3. Requesting the Court to Collect Evidence
In arbitral proceedings, when the arbitral tribunal or the parties have taken all necessary measures but are still unable to obtain the required evidence, they have the right to request the Court’s assistance. Pursuant to Article 46 of the Law on Commercial Arbitration 2010, the arbitral tribunal or a disputing party may submit a written request to the competent Court, asking it to require the individual, agency, or organization in possession of the evidence to provide it. In such cases, the Court shall proceed in accordance with the procedures prescribed by the 2015 Civil Procedure Code to collect the evidence and deliver it to the arbitral tribunal.
This mechanism reflects the cooperation between arbitration and the Court: since arbitral tribunals lack coercive authority, judicial assistance is necessary to ensure that the dispute resolution process remains objective, supported by sufficient evidence, and carries practical legal validity.
1.4. The Authenticity of Evidence in Arbitral Proceedings
In arbitral proceedings, the authenticity of evidence is ensured through various means, such as requiring that evidence originate from a lawful source, be presented in its original form or as a certified copy, and that electronic data bear a digital signature. When disputes arise regarding the reliability of evidence, the arbitral tribunal may seek expert appraisal, summon witnesses, or verify consistency with commercial customs and international trade practices.
Unlike in civil proceedings—where authenticity is primarily guaranteed through certification and verification by state authorities—arbitral proceedings grant the arbitral tribunal greater discretion to assess evidence based on the case file and the parties’ submissions. However, since the arbitral tribunal lacks coercive powers, in necessary circumstances it must request assistance from the competent Court to verify the evidence.
If an arbitral award is based on falsified evidence provided by one of the parties, this may constitute one of the grounds for the Court to set aside the arbitral award.
2. Types of Evidence in Arbitral Proceedings
2.1. Documents and Written Materials
Commercial contracts, appendices, minutes, invoices, bills of lading, payment documents, certificates of origin, and customs papers are among the most important types of evidence, as they directly reflect the rights, obligations, and transactions between the parties.
2.2. Electronic Evidence
Emails, messages, faxes, audio or video recordings, and data from ERP systems, management software, or electronic transaction platforms are widely used in international commercial disputes. They are particularly recognized as valid evidence when accompanied by digital signatures or system authentication.
2.3. Testimonies of the Parties and Witnesses
Statements of the claimant, respondent, or their legal representatives, as well as testimonies of witnesses (such as employees, business partners, or experts), may be summoned by the arbitral tribunal to clarify specific facts of the case.
2.4. Expert Appraisal Reports and Expert Opinions
Expert examinations may involve the verification of signatures, seals, product quality, machinery conditions, or damage valuation. In technical or specialized disputes (such as those involving chemicals, construction, or software), expert opinions play a crucial role. Obtaining expert opinions is common in cases concerning technical, legal, financial, or other specialized matters. These expert reports and assessments assist the arbitral tribunal in reaching an accurate and well-grounded decision.
2.5. On-site inspection records and physical evidence
Inspection of the condition of goods, construction works, or storage facilities; physical evidence refers to the actual goods or materials that remain in custody.
3. Procedures for Collecting Documentary Evidence in Arbitration
In arbitral proceedings, the process of collecting evidence is conducted under the principle that the parties are autonomous and bear responsibility for proving their claims. Initially, each party is obliged to provide documents and evidence to substantiate its claims or to refute those of the opposing party (Article 30 of the Law on Commercial Arbitration 2010). When the arbitral tribunal deems the evidence insufficient or requires clarification, it may request the parties to submit additional materials and may also directly take measures such as on-site inspection, expert appraisal, or summoning witnesses (Articles 34 and 35).
In cases where the parties or the arbitral tribunal have taken all necessary measures but are still unable to obtain the required evidence, the arbitral tribunal or one of the parties has the right to submit a written request to the competent Court for assistance in evidence collection (Article 46). The Court shall then apply the procedures prescribed in the 2015 Civil Procedure Code to require agencies, organizations, or individuals to provide the evidence and deliver it to the arbitral tribunal.
All evidence collected shall be examined and evaluated by the arbitral tribunal in accordance with the principles of independence, objectivity, fairness, and consistency with the parties’ agreement as well as the procedural rules of the arbitral institution. This highlights the flexibility of the arbitral mechanism while maintaining coordination with the Court to remedy the arbitral tribunal’s lack of coercive authority.
4. Judicial Involvement in the Verification of Evidence during Arbitral Proceedings
The provincial-level Court where the evidence is located shall have jurisdiction to provide assistance if the parties have not agreed otherwise. Within seven working days from the date of receiving the written request for evidence collection, the Chief Justice of the competent Court shall assign a Judge to review and handle the request. Within five working days from the date of assignment, the Judge must issue a written request to the agency, organization, or individual managing or holding the evidence to provide it to the Court, and must also send this document to the People’s Procuracy of the same level for the performance of its functions and duties in accordance with the law.
Agencies, organizations, or individuals managing or holding the evidence are responsible for providing the requested evidence fully and promptly to the Court within fifteen days from the date of receiving the request. Within five working days from the date of receiving the evidence provided by such agencies, organizations, or individuals, the Court must notify the arbitral tribunal and the requesting party to proceed with the handover of the evidence. If the evidence is not provided within the prescribed time limit, the Court must immediately inform the arbitral tribunal and the requesting party, and concurrently issue a written request to the competent authority to take action in accordance with the law.
5. How to Resolve Disputes through the BigBoss International Arbitration Center (BBIAC)
To resolve disputes through arbitration at BBIAC, parties may include one of the following sample clauses in their contracts:
5.1. Standard Arbitration Clause
“All disputes arising out of or in connection with this contract shall be settled by arbitration at the BigBoss International Arbitration Center (BBIAC) in accordance with its Arbitration Rules.”
Optional additions:
(a) Number of arbitrators: [one or three];
(b) Seat of arbitration: [city and/or country];
(c) Governing law: [ ];*
(d) Language of arbitration: [ ].***Note: (a) and (b) apply where foreign elements are involved;
*(c) applies where at least one party is a foreign-invested enterprise.
5.2. Expedited Procedure Clause
“All disputes arising out of or in connection with this contract shall be settled by arbitration at the BigBoss International Arbitration Center (BBIAC) in accordance with its Arbitration Rules. The parties agree that the arbitration shall be conducted under the Expedited Procedure set forth in Article 37 of the BBIAC Arbitration Rules.”
Optional additions:
(a) Seat of arbitration: [city and/or country];
(b) Governing law: [ ];*
(c) Language of arbitration: [ ].**Notes as above apply.
Contact: +84 979 133 955 for consultation.
