Call anytime+234 810 159 9159
Like Court proceedings in litigation, Arbitration as a form of dispute resolution requires the presentation of oral and/or documentary evidence from the parties for evaluation by the Arbitrator to arrive at a final decision called the Award of the Arbitration.
The application of evidence, oral or documentary, plays a central and pivotal role in arbitration proceedings. The reason is that Arbitrators, like Judges, must carefully evaluate the evidential materials presented by both parties in order to arrive at a fair decision. Evidence, therefore, traditionally meant paper documents and oral testimony. However, with the evolution of technology and the digitization of commerce, most relevant information today is electronic, ranging from emails, WhatsApp messages, electronic contracts, to scanned documents, databases, digital signatures, and even blockchain records.
Unlike physical documents, electronic evidence can be easily modified, and it may be hard to detect such modification without computer forensics. Hence, this shift raises an important question as to what guiding principles Arbitrators should apply in admitting and reviewing electronic evidence.
Domestic Arbitration – The Nigerian Framework
In Nigeria, the admissibility of evidence in Court is governed by the Evidence Act 2011 and the Evidence (Amendment) Act 2023, respectively, which include specific provisions such as Section 84 on the admissibility of computer-generated documents. However, the Act does not apply to arbitral proceedings, and this is one of arbitration’s key advantages, that parties are not constrained by the technical evidentiary rules of the litigation process, which can cause delay and procedural complexity. Instead, arbitral proceedings in Nigeria are governed by the Arbitration and Mediation Act 2023 (AMA), which applies to both domestic and international arbitration.
The Arbitration and Mediation Act 2023 emphasizes flexibility, party autonomy, and Tribunal discretion. The Arbitration and Mediation Act 2023 permits parties to file their statement of claim with supporting documents or references to other evidence they intend to rely upon[1].
The Act also provides that, unless otherwise agreed by the parties, the Arbitral Tribunal shall determine whether the proceedings will be conducted by oral hearings, documentary evidence, or a combination of both[2]. Each party carries the burden of proving the facts relied upon to support its claim or defense[3].
Notably, the AMA does not distinguish admissibility between physical and electronic documents. The implication is that electronic evidence is admissible as physical evidence, subject to the Tribunal’s evaluation of its authenticity and probative value. The Act empowers the Tribunal to require parties to produce documents, Exhibits, or other evidence, and the Tribunal is empowered by the Act to determine the admissibility, relevance, materiality, and weight of such evidence presented[4].
What this means is that, unlike Section 84 of the Evidence Act, which provides a specific framework for admitting electronic documents in court and deeming such evidence as vetted, the Arbitration and Mediation Act 2023 and Arbitral Rules do not prescribe such a process. Instead, it is the Arbitral Tribunals who determine the conduct of proceedings, and have the discretion to set the procedures for verifying electronic documents presented as evidence. This ensures that the electronic evidence admitted is genuine, reliable, and not falsified.
International Arbitration and Electronic Evidence
On the international stage, national laws and institutions play a significant role in shaping procedure and the conduct of arbitration proceedings. To promote uniformity, particularly where parties from different jurisdictions are not subject to a single legal system, several international arbitral institutions and national frameworks have developed rules that address procedural and evidential matters.
The American Arbitration Association (Commercial Arbitration and Mediation) Rules 2022: The Rules allow parties to submit any evidence relevant and material to the dispute. The tribunal determines admissibility, relevance, and materiality, and may exclude cumulative or irrelevant evidence. Importantly, conformity with strict legal rules of evidence is not required, which creates room for electronic documents to be considered[5].
The International Centre for Dispute Resolution Rules: The ICDR Rules expressly acknowledge technology. They provide that tribunals and parties may consider how video, audio, or other electronic means can improve efficiency. The tribunal may, at any stage of the proceedings, order the parties to produce documents, exhibits, or other evidence it considers necessary or appropriate.[6] The rules further clarify that documents maintained in electronic form may be produced in the most convenient format, unless the tribunal requires otherwise. Requests for electronic documents must be focused and economical[7]. This provision explicitly accommodates electronic evidence.
The International Centre for Settlement of Investment Disputes Arbitration Rules 2022: provides that the Tribunal shall determine the admissibility and probative value of the evidence adduced[8]. The Tribunal may call upon a party to produce documents or other evidence if it deems it necessary at any stage of the proceeding[9]. It can be implied that this extends to electronic evidence.
The UNCITRAL Model Law on International Commercial Arbitration: This grants Arbitral Tribunals the discretion to determine the admissibility and weight of evidence[10].
The Arbitration Act 1996: This Act has been amended by the Arbitration Act 2025. In the United Kingdom, this Act vests arbitral tribunals with authority over procedural and evidential matters[11]. This includes the discretion to determine whether to apply strict rules of evidence (or any other rules) as to the admissibility, relevance, or weight of any material (oral, written, or other) sought to be tendered on any matters of fact or opinion, and the time, manner and form in which such material should be exchanged and presented[12]. This means that electronic documents are not excluded by default. Rather, the tribunal has full discretion to assess their admissibility and probative value, and determine the weight to be attached to them.
The London Court of International Arbitration (LCIA) Rules 2020: The Rules impose a duty on the arbitral tribunal to adopt procedures appropriate to the circumstances of the case, while avoiding unnecessary delay and expense, in order to ensure a fair, efficient, and expeditious resolution of the dispute. The tribunal is granted broad discretion in fulfilling this duty, subject to any mandatory provisions of applicable law or rules of law it considers relevant. At the same time, the parties are required to act in good faith and to take all necessary steps to facilitate the fair, efficient, and timely conduct of the arbitration, including supporting the tribunal in the discharge of its duties[13]. In relation to electronic evidence, this provision empowers tribunals to admit and regulate the use of such evidence where it contributes to fairness, efficiency, and the expeditious resolution of the dispute.
These arbitration rules address evidence in general terms, granting the tribunal a broad discretion to analyse the admissibility and relevance of evidence.
However, the International Bar Association (IBA) has addressed the treatment of electronic evidence through its “soft law” instruments, most notably the IBA Rules on the Taking of Evidence in International Arbitration, which were significantly revised in 2020. Although not binding, these Rules are widely used as a resource by parties and arbitral tribunals to promote efficiency, economy, and fairness in the evidentiary process.
Article 3 requires each party, within the timeframe set by the tribunal, to submit all documents on which it relies, including public documents and those in the public domain, except for documents already submitted by another party.
Article 3(12)(b) specifically recognizes electronic documents, providing that unless the parties agree otherwise, or the tribunal directs differently, documents maintained in electronic form should be submitted in the format most convenient or economical for the producing party, provided the format is reasonably usable by the recipients.
With respect to admissibility and assessment, the Rules vest the tribunal with discretion to determine the admissibility, relevance, materiality, and weight of evidence. The tribunal may, on its own motion or at the request of a party, exclude evidence for reasons such as:
Taken together, these provisions make it clear that the IBA Rules allow for all types of documents, including electronic evidence. Rather than excluding such evidence, the Rules provide a structured framework for determining when it should be admitted, how it should be produced, and under what circumstances it may be excluded.
From the arbitration rules discussed above, it is clear that electronic documents, which may not ordinarily be admissible in court proceedings, can nonetheless be admitted in arbitration owing to its comparatively flexible evidentiary standards. The applicable standard will depend on the procedural framework chosen by the parties. Where the Arbitration and Mediation Act or the applicable arbitral rules are silent, the tribunal may, with the parties’ agreement, draw guidance from other applicable rules or laws to ensure that an appropriate evidentiary threshold is maintained.
Conclusion
Given the increasing reliance on electronic records in commercial and investment disputes, it is best that arbitral tribunals adopt a balanced approach that ensures flexibility, efficiency, and reliability in the treatment of electronic evidence. It is therefore recommended that tribunals develop guidelines, drawing inspiration from frameworks such as the IBA Rules and the ICDR Rules, to provide greater clarity on the authentication, preservation, and production of electronic evidence.
Such measures would strengthen confidence in the arbitral process and bridge the gap created by the non-applicability of the Evidence Act to arbitral proceedings. Since arbitration is not constrained by rigid evidentiary laws such as the Evidence Act, it allows greater flexibility and responsiveness to technological change.
By adopting a progressive approach that prioritizes authenticity and fairness, arbitration remains an effective mechanism for resolving disputes in the digital age. This ensures that parties, whether in domestic or international proceedings, can rely on electronic records as a viable and credible form of evidence, thereby enhancing both the efficiency and the integrity of the arbitral process.
[1] Section 36 of the Arbitration and Mediation Act 2023
[2] Section 38 (1) of the Arbitration and Mediation Act 2023
[3] Ibid
[4] Article 28 of the First Schedule to the Arbitration and Mediation Act 2023
[5] R-35 of the America Arbitration Association Rules 2022
[6] Article 22 (5) of The International Centre for Dispute Resolution Rules
[7] Article 24 (6) of The International Centre for Dispute Resolution Rules
[8] Rule 36 (1) of the ICSID Rules
[9] Rule 36 (3) of the ICSID Rules
[10] Article 19 (2) UNCITRAL MODEL
[11] Section 34 (1) of the Arbitration Act
[12] Section 34 (2)(f) of the Arbitration Act
[13] Article 14 of the London Court of International Arbitration (LCIA) Rules 2020
Written by Toluwani Kalaro for The Trusted Advisors
Email us: info@cms.trustedadvisorslaw.com