The only provision in the Norwegian Arbitration Act dealing with evidence is section 28, which states that "[t]he parties are responsible for clarifying the facts of the case and are entitled to present such evidence as they wish." If no specific rules are agreed upon, it is to a great extent for the parties to decide how and when they will present the evidence, within the limits of the applicable law.
Each of the parties must present the evidence it relies upon. In the authors' view, generally, the rules of the proceedings should ensure that the evidence, including any expert report, is presented as early as possible in the procedure, unless case-specific reasons merit the evidence being presented at a later stage.
Evidence and expert reports are sometimes submitted late in the proceedings. It is evident that a late submission is sometimes made as a tactic with a view to surprise the opposing party or to limit opposing counsel's time to review the evidence and prepare appropriate rebuttal evidence. The arbitral tribunal should seek to avoid that situation, which is most likely a reason why the submission of evidence is regulated in international arbitration proceedings and a reason why Norwegian ad hoc proceedings may consider adopting a similar approach.
2.7.2 Submission of documents
Further to factual exhibits, the Norwegian ad hoc practice is aligned with that of international arbitration practice. All documents shall be presented as part of the written submissions, or as exhibits to the witness statements.
As to presentation of sources of law, the Norwegian ad hoc practice deviates from international arbitration practice. While it is of course normal procedure that written submissions include references to and sometimes quotes of, the legal authorities on which the parties rely, in Norwegian ad hoc practice, the legal sources are normally presented during the last part of the oral hearing.
2.7.3 Fact witnesses
Written witness statements from witnesses of fact are sometimes submitted in Norwegian ad hoc arbitrations, provided that the witness will be available for questioning during the oral hearing. However, it is not common that the witness statements have the status of main evidence and usually, fact witnesses only testify in the oral hearing without any prior written submission.
In international arbitration it is much more common that witness statements are prepared, and also that the written witness statements have the status of evidence in chief. Where the IBA Rules serve as guidance, the content of the witness statements follows from the IBA Rules Article 4 (5). It follows from Article 4 (5)(b) that the statement shall include:
[A] full and detailed description of the facts, and the source of the witness’s information as to those facts, sufficient to serve as that witness’s evidence in the matter in dispute. Documents on which the witness relies that have not already been submitted shall be provided
It is normal in international arbitration that the parties, within the deadline set out in the procedural timetable, shall notify each other as to witnesses (and experts) to be called for cross examination. A decision not to call a witness to appear for cross examination, shall not be considered as a concession of the substance of the written witness statement. This is sometimes explicitly stated in the PO 1, but it also follows from the IBA Rules Article 4 (8).
Written witness statements will reduce the time needed for direct examination and most of the time in the oral hearing allocated to fact witnesses, will then be spent on cross examination. Cross examination is not limited to the witness statement. It may also include questions about any evidence which the witness could reasonably expect to have personal knowledge of. The PO 1 may also include rules for redirect examination. Redirect examination will normally be limited to matters that have been addressed in cross examination.
In both ad hoc arbitration and international arbitration, it is normal practice that witnesses are not allowed to be present in the hearing before giving their oral evidence.
2.7.4 Expert witnesses
A PO 1 will normally set out rules for expert witnesses reflecting Article 5 of the IBA Rules. The expert report shall contain a description of the instructions, a statement of independence, a statement of the facts it bases its opinion on and the opinions and conclusions. Although in ad hoc arbitration, there is no established rules for the content of expert reports, it is the authors' experience that expert reports in general meet the requirements set out in the IBA Rules.
Examination of experts will normally follow the same procedure that has been agreed for witnesses of fact. This means that the direct examination will be brief, and primarily be focused on cross examination.