- Henry Zhuhao Wang, Alternative Evidence Rules for Arbitration, 24 Nev. L.J. 73 (2024).
- Henry Zhuhao Wang, One Size Does Not Fit All: Alternatives to the Federal Rules of Evidence, 76 Vand. L. Rev. 1709 (2023).
If you ask most practitioners to describe the rules of evidence in arbitration, they’re likely to respond with three words: the Wild West. Recent scholarship by Henry Zhuhao Wang peeks into the black box of arbitral hearings to expand—and complicate—our understanding of this untamed landscape.
When I teach arbitration, I bring a prop to one of the class sessions: an evidence textbook. I ask how many have taken a course on evidence. About three-quarters of the students’ hands shoot up. I ask them to look at the book as I hold it above my head. Notice its thickness. Its height. Its weight. The hard cover and thin pages. I ask them to remember the feeling of schlepping it to class. I ask them to remember the rules. The exceptions to the rules. The exceptions to the exceptions.
Then, I project onto the screen Rule 34 of the American Arbitration Association’s Commercial Arbitration Rules about “Evidence.” The entire Rule is 159 words. In relevant part, it says: “The parties may offer such evidence as is relevant and material to the dispute and shall produce such evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. Conformity to legal rules of evidence shall not be necessary.” It has only a couple cautions: “The arbitrator shall take into account applicable principles of legal privilege, such as those involving the confidentiality of communications between a lawyer and client.” But generally, admissibility is at the discretion of the arbitration: “The arbitrator shall determine the admissibility, relevance, and materiality of the evidence offered and may exclude evidence deemed by the arbitrator to be cumulative or irrelevant.”
Students are amazed. The clarity! The simplicity! Their semester-long evidence course is rendered seemingly irrelevant. Evidentiary decisions are entirely discretionary and virtually unappealable. Many arbitrators disregard traditional courtroom rules. Often, arbitrators will admit all evidence that the parties offer, saying that they will simply “take it for whatever it’s worth.”
Can all that really be true? Should it really be true? Wang observes two contradictory realities in the way that evidence is handled in arbitration.
On one hand, arbitration is an alternative to court. It prioritizes efficiency. Arbitrators are sometimes non-lawyers who adjudicate disputes based on industry custom or professional expertise. Some litigants choose arbitration specifically because it eschews legal formalism, including strict adherence to those pesky Federal Rules of Evidence.
On the other hand, litigants and lawyers come to arbitration with vastly differing expectations about the appropriate level of legal formalism. Some expect arbitrators to “view the rules of evidence as presumptively authoritative” as if it were a courtroom proceeding. Others expect that arbitrators will be “open to alternative methods for presenting evidence that would not be permitted in court.” Moreover, parties and lawyers may come from different jurisdictions with their own unique evidentiary traditions distinct from the Federal Rules.
To make matters even more complicated, many (though not all) arbitrations are run through arbitral providers. Examples include the American Arbitration Association, JAMS, or the International Chamber of Commerce. These providers maintain their own rules governing the conduct of proceedings. Some organizations, like the International Bar Association, offer comprehensive evidentiary rules. But many offer fairly loose rules when it comes to evidence, giving total discretion to arbitrators. The American Arbitration Association’s rule, quoted above, is one such example.
In short, evidence in arbitration is all over the map. From the practitioner’s standpoint, it can be difficult or impossible to predict an arbitrator’s rulings. Against this backdrop, Wang suggests that arbitration could benefit from far greater evidentiary clarity and consistency. After all, arbitration has become central to our civil justice system. Its increase in popularity has coincided with a dramatic decline in civil jury trials. Countless businesses and individuals depend on arbitration to provide fair and predictable adjudications. Perhaps the almost-mischievous informality of evidentiary rules in arbitration is no longer appropriate given arbitration’s primary place in our legal system. Maybe the time has come for more mature standards.
Wang’s view is that arbitration’s traditional “let-it-all-in approach” risk serious pitfalls. It opens the door to the consideration of all sorts of unreliable evidence. Wang identifies a litany of materials that are regularly admitted into arbitral hearings “for what they’re worth,” including: affidavits of witnesses not subject to cross-examination; testimony from junk scientists offering unreliable expert opinions; hearsay statements; character evidence; and unauthenticated documents and photographs (particularly concerning in the age of deepfakes and artificial intelligence). After all, there’s a reason that these sorts of sketchy materials are traditionally precluded from the courtroom: they can’t be trusted.
Wang has some ideas. A few examples of his proposals:
- Drafting fulsome hearsay rules, including a checklist to give arbitrators a better sense of when evidence (such as documents) should require a testifying witness to authenticate.
- More specific prohibitions on evidence that would implicate attorney-client privilege, work product protections, or illegally obtained materials.
- Adopting clear burdens of proof required to establish certain claims (e.g., preponderance of the evidence, clear and convincing, etc.).
Many arbitration purists may dislike Wang’s approach. For those purists, the “legalizing” of arbitration is precisely what should be avoided. They may argue that such a cure is worse than the disease because it undermines the whole purpose of alternative dispute resolution: escaping courtroom formalism. But even the purists must contend with Wang’s assessment of the field at a crossroads. As arbitration becomes ubiquitous, can it serve as a reliable alternative to litigation if its evidentiary rules are so… unreliable? It’s a question worth asking.
