MAY DOCUMENTS AND EVIDENCE BE SUBMITTED AFTER THE DEADLINE IN ARBITRAL PROCEEDINGS?

During arbitral proceedings, the parties may not always be able to collect all relevant documents and evidence from the outset. Certain evidence may only be discovered after the Statement of Claim or Statement of Defence has been submitted, or after the deadline prescribed by the Arbitral Tribunal. In such circumstances, will late-submitted documents and evidence still be considered?

The parties may still submit documents and evidence after the deadline; however, the Arbitral Tribunal is not automatically required to admit or consider such evidence. The consequences of late submission depend on the time of submission, the applicable Rules of Arbitration, the parties’ agreement, the directions of the Arbitral Tribunal, and the reasons for the delay.

1. Submission of evidence is both a right and an obligation of the parties

Under Article 46.1 of the 2010 Law on Commercial Arbitration (LCA), the parties have the right and obligation to provide evidence to the Arbitral Tribunal to establish the facts relevant to the matters in dispute.

Similarly, Article 19.1 of the MCAC Rules of Arbitration provides that the Arbitral Tribunal has the power to require the parties to provide evidence, and the parties are obliged to provide such evidence.

Arbitration law does not prescribe a single general deadline applicable to the submission of all documents and evidence. Depending on the particular dispute, the applicable deadline may be determined by the Rules of Arbitration, the parties’ agreement, or the procedural directions or decisions of the Arbitral Tribunal.

2. Submission of evidence after the deadline but before the conclusion of the final hearing

Where evidence is submitted after a deadline prescribed during the resolution of a dispute, the delay does not automatically render the documents or evidence inadmissible or devoid of evidentiary value. Nevertheless, the submitting party cannot assume that the Arbitral Tribunal will necessarily consider such documents or evidence.

The Arbitral Tribunal may generally take the following factors into account:

• Whether there is a legitimate reason for the late submission;
• When the submitting party became aware of, or was able to access, the documents or evidence;
• The relevance and significance of the documents or evidence to the resolution of the dispute;
• Whether the late submission would prolong the proceedings, increase costs, or prejudice the other party;
• Whether the other party has sufficient time and opportunity to access, examine, and comment on the new documents or evidence; and
• Whether there are indications of intentional delay or an abuse of the arbitral process.

The consideration of late-submitted documents and evidence must also comply with the principle of equal treatment of the parties under Article 4.3 of the 2010 Law on Commercial Arbitration. Therefore, if such documents or evidence are admitted, the other party should be given a reasonable opportunity to access them and submit its response.

It is also necessary to distinguish between the supplementation of evidence and the amendment or supplementation of a Statement of Claim, Counterclaim, or Statement of Defence. Under Article 14.2 of the MCAC Rules of Arbitration, the parties may amend or supplement these submissions before the conclusion of the final hearing. However, the Arbitral Tribunal may refuse to accept such amendments or supplements if they may be abused to obstruct the proceedings, delay the issuance of the Arbitral Award, or exceed the scope of the Arbitration Agreement.

3. Submission of evidence after the conclusion of the final hearing

Article 25.4 of the MCAC Rules of Arbitration provides that, at a hearing for the resolution of the dispute, where the Arbitral Tribunal determines that the parties have no further relevant documents or evidence to submit, it shall declare that hearing to be the final hearing. After the conclusion of the final hearing, the Arbitral Tribunal is under no obligation to consider any additional documents or evidence unless otherwise agreed by the parties.

Accordingly, after this point, a party may still submit additional documents or evidence, but the Arbitral Tribunal is not obliged to consider them unless the parties to the dispute have agreed otherwise. Where the parties agree to permit the submission of additional evidence, its admission and consideration must still safeguard the other party’s right to access and respond to such evidence.

4. What should businesses do when documents or evidence are submitted late?

To minimise the risk that documents or evidence will not be considered, businesses should:

1. Proactively review, catalogue, and submit evidence within the prescribed deadline.
2. If timely submission is expected to be impossible, submit a written request for an extension before the deadline expires and clearly explain the reasons for the request.
3. Where late submission is unavoidable, provide a written explanation addressing the reasons for the delay, when the evidence was discovered or became accessible, and its significance to the resolution of the dispute.
4. Submit the required number of copies in accordance with the MCAC Rules of Arbitration and provide a translation where the documents are prepared in a language other than the language of arbitration, if so required by MCAC or the Arbitral Tribunal.

Where a business receives evidence submitted late by the other party, it should promptly state whether it accepts or objects to the admission of that evidence. If the Arbitral Tribunal decides to consider the evidence, the business should also request a reasonable period to examine it and submit its response.

Conclusion

The submission of documents and evidence after the deadline does not necessarily mean that they will automatically be excluded from consideration. However, after the conclusion of the final hearing, the Arbitral Tribunal is under no obligation to consider any additional documents or evidence unless otherwise agreed by the parties. The parties should therefore comply with the applicable submission deadlines and promptly provide an explanation whenever a late submission occurs.

 

The article above has analyzed in detail is "MAY DOCUMENTS AND EVIDENCE BE SUBMITTED AFTER THE DEADLINE IN ARBITRAL PROCEEDINGS?". For more detailed information or legal assistance, please contact the MCAC Secretariat:

• Hotline: 0935 925 068 - 0236 3656799
• Email: contact@mcac.vn
• Read more: ARBITRATION AND COURTS: KEY DIFFERENCES AND ADVANTAGES OF ARBITRATION THAT BUSINESSES SHOULD KNOW