10. Procedural rules, evidence and discovery

10. Procedural rules, evidence and discovery

One of the primary benefits of arbitration is procedural flexibility, allowing parties to tailor the “rules of the game” to their specific needs and the nature of their dispute. Subject to mandatory safeguards in the public interest, such as the duty to treat parties equally and provide a reasonable opportunity to present a case, the parties are free to agree on how the dispute should be resolved. This includes the ability to agree on “documents-only” proceedings, the use of tribunal-appointed experts, or specific timelines for the exchange of pleadings.  

If the parties do not agree on a procedure, the tribunal has the statutory power to conduct the arbitration in any manner it considers appropriate. This flexibility allows for the avoidance of the rigid formalities and technical rules of evidence found in court litigation. Furthermore, unless the parties agree otherwise, section 56(7) of the Arbitration Ordinance (Cap. 609) grants the tribunal a specific inquisitorial power to decide whether and to what extent it should itself take the initiative in ascertaining the facts and the law relevant to the proceedings. 

While the Arbitration Ordinance provides the tribunal with general powers to direct the discovery of documents and the delivery of interrogatories, parties can tailor these powers in their agreement. While many international practitioners view limitations on discovery as an advantage, it is important to note that in a Hong Kong-seated arbitration, these powers exist by default. Consequently, if parties wish to limit or exclude discovery to control costs, they must expressly agree to do so in their arbitration agreement or through the adoption of specific arbitral rules. 

The tribunal is not bound by the formal rules of evidence used in court and may decide the admissibility, relevance, and weight to be given to any evidence adduced. However, this flexibility is subject to a mandatory safeguard in section 56(9): a person cannot be required to produce any document or evidence in an arbitration that they could not be required to produce in civil court proceedings. This ensures that fundamental protections, such as legal professional privilege, remain absolute and cannot be overridden by the tribunal’s procedural discretion.