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ASA below 40 & Friends Event Report – “Beyond the Record: Should Arbitrators Seek Their Own Facts?”
Ramona Keist, WilmerHale
Key Takeaways from Angelina Petti, Sebastian Lukic, Kartik Singh, Nadja Harraschain, and Vincent Reynaud
At the ASA below 40 event held during the recent Swiss Arbitration Summit 2026 in Geneva, Angelina Petti (von Segesser Law Offices) opened the session with a thought-provoking keynote on whether an arbitral tribunal should seek its own facts. Informed by her experience as an arbitrator and her background in both civil- and common-law traditions, she offered a nuanced and insightful perspective from the arbitrator’s standpoint. Her remarks set the stage for a dynamic panel discussion between Sebastian Lukic (Schönherr), Kartik Singh (Baker McKenzie), and Nadja Harraschain (rothorn legal), moderated by Vincent Reynaud (LALIVE). Together, they explored key principles, practical challenges, tools, and limits of an arbitral tribunal’s initiative, offering concrete insights into when and how fact-finding by the arbitral tribunal may be appropriate and where it risks infringing upon party autonomy and consent.
For the purposes of the panel discussion, Sebastian offered valuable insights from the perspective of a strong proponent of an adversarial system that significantly limits arbitrators’ right to seek facts on their own initiative. Kartik, drawing on his experience in the common law jurisdictions of Singapore and the UK, likewise favoured an adversarial process. By contrast, Nadja, as a German-qualified lawyer, provided a nuanced view from the more lenient German civil law perspective. She explained that German courts have confirmed that under German arbitration law (Article 1042(4) of the German Code of Civil Procedure, as mirrored in Article 28 of the 2018 DIS Rules), arbitrators not only may take an inquisitorial role in the taking of evidence but, in certain circumstances, even should do so.
Key Principles
Angelina emphasised that the arbitral record is ultimately a reflection and product of party autonomy and party consent. Unlike state courts, arbitral tribunals derive their authority entirely from the parties’ consent. Stepping beyond their mandate risks compromising the integrity of the arbitral process. From a counsel’s perspective, Sebastian highlighted that the adversarial model promotes clarity and fairness. Counsel want to operate within a predictable framework, knowing precisely what evidence is before the arbitral tribunal and on what basis the case will be decided. This is closely tied to due process and the parties’ right to be heard, which requires that each party has a fair opportunity to address and respond to the material on which the arbitral tribunal intends to rely. If an arbitral tribunal were to rely on facts or evidence outside the record, it could expose the award to annulment or refusal of enforcement, thereby jeopardising the finality that arbitration is meant to ensure.
Practical Challenges
Yet, as Angelina emphasised, real‑world situations are rarely black and white, and arbitrators may face a range of practical challenges that complicate a strict doctrinal approach. Kartik concurred that the arbitral tribunal should strive to ensure that the award will be enforceable in the jurisdictions where enforcement is reasonably foreseeable. This responsibility may – within certain limits – require the arbitral tribunal to take measured steps to clarify the record to safeguard the enforceability of the award.
- Red flags of corruption, sham arbitrations, or sanctions: Angelina noted that where indicators of corruption, sham proceedings, or sanctions arise – but neither party has addressed them – the arbitral tribunal may face a tension between party autonomy and its duty to render an enforceable award. In such situations, and particularly in institutional arbitrations, she suggested that arbitrators may seek guidance from the institution on how best to address the issue. Moreover, as noted by Kartik, the ICC Commission’s 2024 Report on Red Flags or Other Indicators of Corruption in International Arbitration provides practical and structured tools for identifying and handling corruption concerns. Kartik also mentioned ICC’s upcoming umbrella report on corruption which may help provide a framework / a set of considerations for tribunals to keep in mind when addressing corruption-related concerns. However, he also observed that in cases of sham arbitrations involving both parties, parties often withdraw their claims once the arbitral tribunal begins probing the irregularities. While little can be done to prevent such withdrawals, the arbitral tribunal at least avoids inadvertently facilitating any impropriety by failing to inquire.
- Thin record: If essential information or documentation is absent from the record, the arbitral tribunal’s ability to render an award may be compromised. In such circumstances, the arbitral tribunal may draw the parties’ attention to the missing material, while carefully assessing whether such comments are strictly necessary and proportionate to resolving the issues in dispute.
Tools for Arbitrators to Seek Their Own Facts
Nadja explained that whether an arbitral tribunal may or should seek its own facts depends not only on the specific circumstances but also on the tools it employs to conduct fact-finding. In her view, such tools are more acceptable the more they preserve party control over the process. For example, requesting clarification from the parties is preferable to conducting independent online research. Sebastian similarly emphasised that difficulties often arise when arbitrators fail to engage in an open dialogue with the parties. Across the panel, there was broad agreement that in most situations the appropriate approach is for the arbitral tribunal to identify any pertinent issues and formally invite the parties to clarify their positions and/or to provide supporting evidence. Crucially, any tribunal request should be clearly recorded: transparency is paramount. Sebastian added that, when handled in a considerate manner, he does not oppose even far‑reaching questions, provided that the arbitral tribunal maintains an open mind regarding the outcome of the case. However, Kartik cautioned that arbitral tribunals should remain mindful of efficiency and may consider limiting the scope of responses to their queries.
To minimise the need for tribunal inquiries in the first place, Sebastian advised counsel never to assume prior knowledge on the part of arbitrators and instead to explain any relevant issues by taking “baby steps.” Nadja echoed this view, recommending that counsel “hope for the best but prepare for the worst.” She added that counsel should be aware that arbitral tribunals may, motivated by concerns regarding due process, conduct more inquiries than usual in cases involving an absent respondent, warning that some arbitral tribunals might even effectively transfer the burden of proof without explicit acknowledgement or prior notification to the involved parties.
The panel also considered whether tribunal questions directed at witnesses risk opening the door to fact‑finding beyond the record. Angelina noted that this risk may be mitigated when parties are given the opportunity to pose follow‑up questions to the witness and that distinctions should be drawn between questions posed by the arbitral tribunal to experts versus fact witnesses. Vincent nevertheless cautioned that inefficiencies may arise when an arbitral tribunal reserves substantive questions until the hearing, as this may lead to the introduction of new issues at a late stage.
Furthermore, the panel discussed whether an arbitral tribunal may draw factual inferences from the existing record. Angelina observed that evaluating the documents on file will inevitably involve a degree of factual inference, as arbitrators naturally engage with the material before them. This, she explained, is a legitimate part of deliberation. However, she stressed that, as a matter of best practice, the arbitral tribunal should generally put to the parties any adverse inferences it intends to rely on – particularly those that are decisive or may otherwise come as a surprise – so that the parties have a fair opportunity to comment before the arbitral tribunal reaches its decision.
Publicly Available Information
Angelina strongly discouraged arbitrators from proactively conducting their own research on the parties or the facts of the case. At the same time, she acknowledged that arbitrators should continue to read the news and stay informed in their fields of expertise; complete insulation from external knowledge is neither realistic nor expected. But if arbitrators come across information that may be relevant but is not part of the record, it may be appropriate to disclose this knowledge to the parties. She also clarified that these restrictions apply equally to tribunal secretaries. As Sebastian noted, this can be particularly challenging for arbitrators sitting in media‑sensitive cases.
To illustrate how even seemingly innocuous external inquiries can breach due process, Kartik referred to Fleetwood Wanderers Limited v AFC Fylde Limited, where the English High Court annulled an award because the arbitrator had reached out to the Football Association (FA), a non-party, to clarify certain factual matters, which were more properly addressed by the FA, without informing the parties or providing the FA’s response to the parties for consideration and further submissions.
Kartik also emphasised the need for arbitrators to remain aware of how external knowledge – whether consciously or subconsciously acquired – may influence their decision‑making. However, a diverse three‑member tribunal naturally functions as a “marketplace of ideas” that provides an additional safeguard against unconscious bias, as different perspectives and deliberations can help balance out any individual predispositions.
Iura Novit Arbiter?
The panel also considered whether arbitrators should determine the applicable law on their own initiative. As Angelina noted, there is a key distinction between facts and law: an arbitral tribunal cannot possibly know all the facts of a case without party input; by contrast, the law is something the arbitral tribunal is supposed to know.
Sebastian adopted a strict view, arguing that the arbitral tribunal’s role in identifying legal principles should be even more limited than its role in fact‑finding. Nadja agreed that it is primarily for counsel to present the relevant legal authorities and frameworks to the arbitral tribunal. The panel emphasised that, where an unpleaded legal principle may be relevant, the arbitral tribunal should not apply it unilaterally and risk surprising the parties. Instead, the more proper course of action would be to invite the parties to address the legal issue and its effect on the case.
Kartik further stressed the distinction between knowing the law and determining its application to the facts. While an arbitrator may be familiar with the applicable legal framework, it is for the parties – not the arbitral tribunal – to introduce and argue the relevance and legal effect of that law in the context of the specific dispute. He also noted that one procedural option, where certain legal issues have not been sufficiently pleaded, is for the arbitral tribunal to issue a partial award on resolved matters and reserve inadequately addressed issues for the final award. However, this approach can conflict with considerations of time and cost efficiency.
Practical Strategies
Given these challenges, Angelina outlined several practical strategies for arbitrators to maintain integrity and transparency throughout the process.
- Set expectations early. A thoroughly drafted and solid Procedural Order No. 1 can serve as a valuable roadmap for the arbitration. Yet, while Procedural Order No. 1 may set out rules on how to handle fact and expert witnesses, she cautioned against overly rigid provisions and encouraged focusing on clarity and transparency instead.
- Remain impartial and transparent. Arbitrators must uphold impartiality and transparency throughout the proceedings.
- Avoid advocacy. Any tribunal inquiries should be limited to what is essential for deciding the issues before them. Arbitrators must take care not to appear to advance any party’s case.
- Act as custodian of the record. Arbitrators bear responsibility for safeguarding the integrity of the record.
- Have the courage to stay within the lines. Arbitrators should respect the limits of their role and trust in adversarial testing as a fundamental safeguard of procedural fairness.
Conclusion
The discussion underscored the delicate balance between party autonomy and the tribunal’s responsibility to render an enforceable award. The panel broadly agreed that, although an arbitral tribunal should generally refrain from investigating facts on its own initiative there may be exceptional circumstances in which doing so is necessary. In such cases, the arbitral tribunal should ensure full transparency and involve the parties throughout the process.