نوع مقاله : مقاله پژوهشی
نویسندگان
1 استاد، گروه حقوق خصوصی، دانشکده حقوق، دانشگاه علوم قضائی و خدمات اداری، تهران، ایران
2 کارشناس ارشد، گروه حقوق خصوصی، دانشکده حقوق، دانشگاه علوم قضائی و خدمات اداری، تهران، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Introduction
Arbitration is recognized as an effective tool for dispute resolution, offering a flexible and efficient alternative to judicial litigation. One of its primary strengths lies in granting the parties autonomy to determine procedural rules, select arbitrators, and design the framework governing evidence-taking. However, party autonomy also entails inherent limitations—particularly regarding access to evidence held by third parties, i.e., individuals or entities that are not party to the arbitration agreement but may possess crucial documents or information. Obtaining such evidence, especially in complex commercial arbitrations, has become a significant challenge.
This article seeks to comprehensively examine the scope of an arbitral
tribunal’s power to obtain evidence from third parties despite multiple theoretical and practical constraints. In doing so, it explores the limits and obstacles of arbitral jurisdiction, the potential role of national courts, and the interaction between different legal systems and international soft law instruments. The primary focus is on the legal systems of Iran, the United States, and the United Kingdom as leading jurisdictions in arbitration, as well as the 2020 IBA Rules on the Taking of Evidence in International Arbitration.
Methods
The research method is descriptive-analytical, grounded in comparative analysis of statutory frameworks, case law, model laws, and doctrinal sources. The study reviews Iran’s legal position regarding the possibility of obtaining evidence from third parties, contrasting it with jurisdictions that explicitly provide mechanisms for this purpose, such as the United States and the United Kingdom. Furthermore, it examines the practical application of the IBA Rules in regulating evidence-taking from third parties, emphasizing their status as globally accepted but non-binding standards.
Findings
The findings reveal that Iran’s current stance on evidence-taking from third parties reflects reluctance to recognize such mechanisms. Nonetheless, the draft Comprehensive Arbitration Bill—which is yet to be enacted—expressly contemplates this possibility. In the United States, arbitral authority to compel third parties to produce evidence has been narrowly construed by courts. Under Section 7 of the Federal Arbitration Act, arbitrators may summon third parties only for testimony and document production at formal hearings, not during pre-hearing discovery. This restrictive interpretation has been affirmed in landmark decisions such as Comsat Corp. v. National Science Foundation (1999) and Hay Group v. EBS Acquisition (2004). However, Section 1782 of the U.S. Judicial Code authorizes federal courts to assist foreign or international tribunals in evidence-gathering, though its applicability to private arbitrations has been contentious, particularly following the U.S. Supreme Court’s ruling in ZF Automotive v. Luxshare (2022).
By contrast, UK law offers a broader avenue for judicial assistance. Sections 43 and 44 of the Arbitration Act 1996 empower English courts, upon request of the tribunal or with party agreement, to order third parties to produce evidence, provided criteria such as specificity, relevance, and tribunal approval are met. This judicial authority is territorially limited to England and Wales. In the landmark A v. C (2020) decision, however, the English Court of Appeal held that courts may grant such assistance even in arbitrations seated outside England, provided the third party is within its jurisdiction.
Alongside these national approaches, the IBA Rules on the Taking of Evidence provide a balanced framework for managing evidence-taking from third parties. Article 3(9) permits parties to request that the tribunal itself seek documents from third parties or authorize them to do so. Nevertheless, the enforcement of such requests ultimately depends on the cooperation of national courts and the enforceability of measures under the law of the arbitral seat. The Rules also introduce safeguards—including relevance, materiality, proportionality, efficiency, and avoidance of undue burden—to prevent misuse of the evidence-taking process.
Conclusion
Although party autonomy in arbitration is constrained by various limitations on tribunals’ authority to obtain evidence from third parties, rigid adherence to these restrictions risks undermining the truth-seeking function of arbitration. Accordingly, evidence-taking from third parties, when pursued through national and international rules with the assistance of national courts and subject to appropriate safeguards, is achievable to some extent. This approach not only enhances the efficiency of arbitration but also strengthens its ability to achieve truth and deliver justice.
کلیدواژهها [English]
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