## Facts

- Company A and Company B entered a technical cooperation agreement under which Company A would provide technical assistance to Company B.
- The contract contained an arbitration clause providing that the ICC Rules applied.
- A dispute arose, and Company B commenced ICC arbitration proceedings in England.
- The record showed that Dr. Y and Dr. V (an employee of Company A) kept daily notebooks recording their schedules and contemporaneous correspondence with Mr. X at various meetings.
- Company A submitted copies of the relevant notebook pages during the proceedings.
- The tribunal also received copies of the original diary contents in German, and Dr. Y referred to his notebook while testifying.
- Mr. X referred to notebooks during his testimony, but Company B did not offer those notebooks into evidence.
- Company B objected to admission of Dr. Y’s and Dr. V’s diary entries, arguing they were inadmissible under §§ 21 and 32 of the Indian Evidence Act because (as Company B argued) statements in a business record like a diary could not be admitted unless the writer was dead.

## Issues

1. In an ICC arbitration seated in England, must the tribunal apply the Indian Evidence Act provisions invoked by Company B to decide whether the diary notebooks were admissible?
2. If not, may the tribunal admit the diaries under the ICC Rules and its procedural authority, while still ensuring each party has a fair chance to address the evidence?

## Decision

- The tribunal admitted the diary/notebook evidence offered by Company A despite Company B’s objection based on the Indian Evidence Act.
- The tribunal treated the admissibility question as governed by the arbitral procedure under the ICC Rules and the tribunal’s case-management powers in the England-seated arbitration, rather than by the Indian Evidence Act restrictions raised by a party.
- The tribunal received the diaries into the record and treated their reliability and probative value as matters to be assessed in light of the surrounding evidence and testimony, including the fact that Dr. Y testified and referred to his notebook.

## Legal Principles

- Under the ICC Rules, an arbitral tribunal has broad authority to manage the taking of evidence, including deciding what evidence may be received and how much weight it should carry.
- Domestic evidence statutes do not automatically control evidentiary admissibility in an international arbitration merely because a party invokes them; their application depends on party agreement or a mandatory rule that binds the tribunal at the seat.
- A tribunal may admit contemporaneous business records (such as diary notebooks) and then evaluate credibility and weight by reference to testimony and the overall evidentiary record.
- Procedural fairness is protected where the parties have a real opportunity to address and test the evidence during the proceedings, including through witness testimony and questioning.

## Conclusion

Final Award in ICC Case No. 7626 reflects an ICC tribunal’s use of its procedural authority in an England-seated arbitration to admit contemporaneous diary notebooks over objections based on the Indian Evidence Act, treating admissibility as a matter for the tribunal under the ICC Rules and handling reliability primarily through evidentiary weight and the parties’ ability to test the material in the hearing.


Final Award in ICC Case No. 7626, XXII Y.B. Comm. Arb. 132 (1997)