In court litigation, evidence is governed by a strict system of rules: sources of evidence, submission procedures, deadlines, examination order. In commercial arbitration, the picture is entirely different: the Law on Commercial Arbitration 2010 gives the arbitral tribunal and the parties great initiative and flexibility in collecting and assessing evidence. Understanding these “rules of the game” correctly — from the duty to provide evidence, the right to request expert examination, to the mechanism for seeking court assistance — is the key for businesses to build a winning evidence strategy. The cited legal framework is the Law on Commercial Arbitration 2010, as amended and supplemented by Law 81/2025/QH15, effective from 01/07/2025.
The philosophy of evidence in arbitration: flexibility over formalism
The fundamental difference lies in the regulatory philosophy. The Civil Procedure Code builds a highly formalistic evidence process: evidence must come from statutory sources, be submitted under prescribed procedures and deadlines, with assessment tied to strict procedural principles. The Law on Commercial Arbitration 2010 takes the opposite approach: instead of detailed enumeration, the Law empowers the parties and the arbitral tribunal to take the initiative.
The parties have the right and duty to provide evidence to prove facts relating to the merits of the dispute (Clause 1, Article 46); the arbitral tribunal has the authority to verify facts, request witnesses to provide information, order expert examination, consult experts, and when necessary request court assistance in collecting evidence. The consequence: in arbitration, the important question is “is this evidence relevant, reliable, and probative.” This flexibility makes arbitration particularly suited to complex, cross-border commercial disputes.
Compared with court litigation: in court, evidence must come from statutory sources and be submitted within procedural deadlines; in arbitration, the parties are free to agree on the applicable evidence rules, and the arbitral tribunal is not bound by the evidence provisions of the Civil Procedure Code. This freedom allows a tailor-made process for each case, but requires the parties to proactively design it from the outset. The only mandatory intersection is when the coercive power of the state is needed — then the court-assistance mechanism under the Law on Commercial Arbitration is triggered.
Rights and duties of the parties in providing evidence
Clause 1, Article 46 provides concisely but as a matter of principle: the parties have the right and duty to provide evidence to the arbitral tribunal. “Right” means each party may proactively submit any documents and information it considers favorable; “duty” means a party that fails to provide evidence to support its position bears the disadvantage when the arbitral tribunal assesses and issues the award.
This duty is concretized right from the commencement stage: the statement of claim must be accompanied by originals or copies of relevant documents and evidence (Article 30), and the statement of defense must state the grounds and evidence for the defense (Article 35).
A practical point: the Law does not give the arbitral tribunal the power to “order” parties to provide specific evidence as courts do — the party making a claim must prove it. Businesses cannot expect the arbitral tribunal to go “find” evidence on their behalf.
The arbitral tribunal’s authority to verify facts
Beyond its adjudicative role, the Law gives the arbitral tribunal a proactive role in clarifying the truth. Article 45 provides: the arbitral tribunal has the right to meet or exchange with the parties (in the presence of the other party) to clarify relevant issues, and may on its own or at the parties’ request investigate facts from third persons — in the presence of the parties or after notifying the parties.
This provision balances two values: allowing the arbitral tribunal to proactively collect information from independent sources, while ensuring the adversarial principle — no party is “judged” on information it did not know and had no opportunity to rebut. In practice, this power is often exercised through “procedural orders” (requests to clarify contradictions, provide supplementary documents), and cooperative or uncooperative attitudes are reflected when the arbitral tribunal issues the award.
Witnesses: from requests for information to examination at hearings
Clause 2, Article 46 provides: at the request of one or all parties, the arbitral tribunal has the right to request witnesses to provide information and documents relating to dispute resolution. Note the structure: this power of the arbitral tribunal arises “at the request of one or all parties” — i.e., initiated by the parties.
Witness testimony usually takes two forms: a written statement filed with the dossier, and direct examination at the hearing — where the parties (usually through counsel) directly question and cross-examine the other side’s witnesses under the flexible management of the arbitral tribunal.
A practical limitation: the arbitral tribunal has no coercive power over witnesses as courts do; when needed, the parties may ask the arbitral tribunal to request the court where the witness resides to assist in summoning (point e, Clause 2, Article 7). Therefore, selecting and preparing witnesses — ensuring they are willing to cooperate and give consistent testimony — is an indispensable part of the evidence strategy.
Expert examination, valuation, and expert consultation
For disputes with technical elements — goods quality, construction work volumes, asset values, financial losses — expert opinions are often the decisive evidence. The Law gives the arbitral tribunal two tools: ordering expert examination and asset valuation, and consulting experts — all conducted by the arbitral tribunal on its own or at the parties’ request, with fees advanced by the requesting party or allocated by the arbitral tribunal.
The distinction: expert examination/valuation is usually tied to licensed examination organizations and produces formal conclusions; expert consultation is more flexible. In practice, parties also often hire their own experts to provide counter-opinions — and the “battle” between experts at the hearing often decides the outcome of the case.
When self-collection fails: seeking court assistance
The arbitral tribunal is a private adjudicative body without the coercive power of the state. When necessary measures have been applied but evidence still cannot be collected on its own, the law opens the court-assistance mechanism.
This mechanism is carried out by a written request to the competent court — the court of the place where the evidence is to be collected (point d, Clause 2, Article 7) — asking agencies, organizations, or individuals to provide readable, audible, visible documents or other physical items relating to the dispute. The written request must state the case details, the evidence to be collected, the reasons self-collection failed, and the place managing or keeping the evidence. Within 07 working days, the Chief Judge of the competent court assigns a judge to consider and resolve the request.
Assessing evidence: free but not arbitrary
The Law on Commercial Arbitration does not build a detailed evidence-assessment rule system like the Civil Procedure Code. The arbitral tribunal assesses evidence freely, on the basis of comprehensively considering all evidence in relation to one another and to the context of the case.
Free does not mean arbitrary. In practice, arbitral tribunals commonly apply widely recognized criteria: relevance, authenticity, completeness, and consistency — for cross-border cases, international standards such as the IBA Rules on the Taking of Evidence may also be considered where the parties agree to apply them. Precisely because there is no “safety net” of formalistic rules, the quality of evidence presentation matters all the more: a logically organized dossier is far more persuasive than a pile of scattered documents.
For electronic evidence — emails, messages, ERP systems, electronic contracts — arbitral tribunals accept it naturally, but the decisive issues are integrity and authenticity: the source of collection, the chain of custody, metadata, and cross-referencing capability. A practical note: build a systematic data-retention process starting today, because once a dispute arises, lost or overwritten data cannot be recovered.
Practical evidence strategy for businesses
A five-step strategy framework. One, inventory evidence as soon as a dispute looms. Two, preserve evidence: issue an internal “hold order,” preventing deletion of emails, overwriting of data, or destruction of documents under retention cycles.
Three, build the evidence “story”: each claim in the statement of claim (or each argument in the statement of defense) must be tied to specific evidence proving it. Four, prepare witnesses and experts early — do not wait until just before the hearing to find witnesses. Five, anticipate evidence “gaps”: which evidence is in the hands of the other party or third persons, and what is the plan to fill them?
Frequently asked questions
Can the arbitral tribunal compel the other party to produce unfavorable documents?
The Law does not give the arbitral tribunal direct coercive power like courts. However, if a party fails to comply with a procedural order requiring document production without a legitimate reason, the arbitral tribunal may draw adverse inferences from that non-cooperation.
Can I ask the arbitral tribunal to collect evidence on my behalf?
Do not count on it. The Law places the duty to provide evidence on the parties (Clause 1, Article 46); the fact-verification authority (Article 45) is the arbitral tribunal’s proactive power, not an obligation to serve one party.
Do arbitration hearings examine witnesses like court trials?
Yes, but more flexibly. Witnesses usually submit written statements in advance, then appear at the hearing for the parties to directly question and cross-examine under the management of the arbitral tribunal, without the rigid sequence of court proceedings.
Are emails and messages valid evidence in arbitration?
Yes. Thanks to the flexibility of the evidence mechanism, arbitral tribunals naturally accept electronic evidence. The decisive issues are authenticity and integrity: the source of collection, the chain of custody, metadata, and cross-referencing capability. Businesses should build a systematic data-retention process in their daily operations.
Contact FLAT LAW FIRM
FLAT LAW FIRM is a boutique business law firm specializing in foreign direct investment (FDI), cross-border transactions, and commercial dispute resolution. In arbitration cases, we do more than litigate — we design the entire evidence strategy: inventorying and preserving evidence, selecting and preparing witnesses, coordinating with examination experts, and requesting the arbitral tribunal and courts to assist in evidence collection when needed. If your business faces a dispute that may need to be resolved by arbitration, contact us early — because in arbitration, the better-prepared party on evidence is usually the winning party.
Disclaimer
This article is for general information only on the evidence regime in commercial arbitration proceedings in Vietnam and does not constitute legal advice for any specific case. Application of the provisions depends on the parties’ agreement, the applicable procedural rules, and the development of each case; businesses should consult a lawyer before making legal decisions.
Useful links
- Resolving disputes by commercial arbitration — overview of arbitration in Vietnam
- Interim emergency measures in arbitration — preserving evidence and assets as disputes escalate
- Selecting arbitrators in disputes — the factor determining the quality of evidence assessment
