UNCITRAL Model Law on International Commercial Arbitration of 1985 and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 state that each party shall be given the right of presenting his case which corresponds to “Recht auf Beweis” or “droit a la preuve” in Civil law. The Turkish Constitution secures the right to be heard and the right of presenting his case as procedural fundamental rights. Article 8 of the Turkish International Arbitration Law states that the parties shall have the same rights and powers. Each party shall be given a [full] opportunity to assert his petitions and defenses. Article 27 of the Turkish Code of Civil Procedure (TCC) provides the right to be heard and stipulates that each party shall have the right of presenting his case. 

Whilst the right of presenting his case is a fundamental human right there are serious restrictions to the same in domestic laws of each country. For example, TCC Article 189 provides the restriction before the municipal courts. These restrictions are (i) presenting all pleadings and evidence in due time and in accordance with the applicable rules of evidence; (ii) presenting evidence only to prove the facts relevant and material to the outcome of the case; (iii) statutory evidence requirement (when the laws states a particular form of evidence such as written document to prove certain matter. For example, legal transactions above a statutory threshold are to be proved with a written document and the witness evidence is inadmissible) (iv) disregarding by the judge the evidence obtained in an illegal way; (vi) the parties do not have the duty to produce evidence to prove confidential information, (witnesses’ right to or lawyers’, accountants’ or doctors’ duty to refuse giving evidence on the confidential information, state secrets or settlement negotiations).  

The evidentiary rules in international arbitration are a mix of Civil and Common evidentiary rules. Ultimately, there is no discovery procedure like in the USA or the UK, but the scope of the document production under the IBA Rules is much larger than in many Civil law jurisdictions. Again, there is no deposition, but each fact witness needs to present a written statement as a precondition to testify in the evidentiary hearing. In Civil Law jurisdiction there is no such a written statement requirement. 

The mixed evidentiary rules of international arbitration may be ineffective or dissatisfactory determining the limits of the right of presenting his case -in Civil law terminology “Recht auf Beweis” or “droit a la preuve”-. For example, in an arbitration seated in Geneva, a French arbitrator needs to make a decision on the American party’s objection against a German party’s document production requests on the basis of attorney-client privilege recognized under the law of the State where the American lawyer practices. Indeed, rejecting the production of the document will limit the requesting party’s right of presenting his case, but allowing the production will at least prejudice the American party’s and his lawyer’s reasonable expectation to keep the documents confidential from the other party and the tribunal. 

In international arbitration, the parties shall be given the right of presenting their case which is a fundamental procedural right protected under UNCITRAL Model Law, the New York Convention, the national laws, the institutional arbitration rules and the IBA Rules. In Model Law jurisdictions, lex arbitri governs the right of the presenting of case but there is no clear answer to the question of what the limits are, and which law governs these limits.  

From the Turkish arbitration law perspective, in consideration of the IBA Rules, the followings constitute the limits of the right of presenting his case:

The first one is making all submissions within the time stated in the procedural timetable. The evidence not presented timely may be deemed inadmissible by the tribunal.  

The second one, presentation of the evidence must be in accordance with the evidentiary rules applicable to the proceedings unless they violate right to be heard and equality of the parties of lex arbitri.

The third one, the parties have the right of presenting their case only to prove the facts relevant and material to the outcome of the case. 

In the case of the fact to be proved is subject to a res judicata the parties do not have the right of presenting the same case and reargue the same facts. 

On the other hand, all of the restrictions provided under the domestic law of the seat of arbitration or lex causae do not need to apply to an international arbitration in the same way before the municipal courts. For example, the restrictions arising out of the statutory evidence systems should not apply in arbitration. Accordingly, Turkish statutory evidence rules do not apply in arbitration. The Turkish Law of Mediation in Civil Cases expressly forbids presenting or producing the document created for the purpose of mediation in arbitration proceedings.

Inadmissibility of evidence because of “legal impediment” or “legal privilege” should be governed by the law most closely with evidence. Should different laws apply to the parties’ inadmissibility claims the most favorable law apply claims of each party disregarding the most closely connected law. Such an approach is a requirement of the equality.

IBA Rules on Taking of Evidence reflect the best practices of the arbitration lawyers having different backgrounds. The Rules have been widely accepted as a guideline in the field of commercial and investment arbitration. IBA Rules do not violate any Turkish mandatory provisions or Turkish public policy, and they apply often proceedings wherein Turkish parties are involved. From the Turkish law perspective, the Rules are able to solve most -if not all- of the problem related to the admissibility of the evidence including the question of legal privilege.