Having their origins in US litigation,[1] demonstrative exhibits have found their place in international arbitration, namely in fact-intensive arbitrations, such as construction arbitrations. Black’s Law Dictionary defines the term “demonstrative evidence” as “[p]hysical evidence that one can see and inspect (such as a model or photograph) and that, while of probative value and usually offered to clarify testimony, does not play a direct part in the incident in question”.[2]
Demonstrative exhibits are visual aids, such as charts, timelines, graphs, maps, videos, or other multimedia presentations, used to help present information, clarify complex issues, and enhance the understanding of the arbitrators, the parties involved, and other stakeholders.
Demonstrative Exhibits Are Not New Evidence
While they may assist arbitrators during arbitration hearings in order to simplify the understanding of complex and highly technical matters, demonstrative exhibits should not be confused with direct evidence that is required to establish the parties’ claims and counterclaims (thus, to discharge their burden of proof).
As emphasised by Gary Born, “Demonstrative evidence is not, strictly speaking, factual evidence or probative of facts; rather, it is a way of explaining, depicting, or arranging evidence that has otherwise been properly submitted.”[3] Instead, as explained by Dr. Bernt Ehle, demonstrative exhibits “substitute[] for and complement[] counsel’s spoken word and illustrated primary evidence.”[4]
This essentially means that demonstrative exhibits are merely props made from the evidence already submitted by the parties. They should not be used to introduce new evidence on the record.
Admissibility of Demonstrative Evidence in International Arbitration
In general, in the absence of mandatory rules to the contrary, the admissibility of evidence in international arbitration is left to the discretion of the arbitral tribunal. In this regard, Article 9(1) of the 2020 IBA Rules on the Taking of Evidence in International Arbitration stipulates that “[t]he Arbitral Tribunal shall determine the admissibility, relevance, materiality and weight of evidence.” The admissibility of demonstrative exhibits is no exception to this rule. Their introduction “lies within the discretion of the arbitrators”,[5] who decide, inter alia, on the time limits of submissions in the proceedings and their format.
For example, in Procedural Order No. 9 issued in the ICSID case Mainstream Renewable Power v. Germany on 22 August 2023, the use of demonstrative exhibits at the final hearing was framed as follows:[6]
Documents that do not form part of the record may not be presented at the Hearing unless otherwise agreed by the Parties or authorized by the Tribunal […].
The Parties may use PowerPoint or other slide presentation software to accompany oral statements and electronic presentation of evidence, subject to the below rule on the use of Demonstrative Exhibits.
[…] Demonstrative exhibits (such as PowerPoint slides, charts, tabulations, etc.) may be used at the hearing, provided they contain no new evidence. Each party shall number its demonstrative exhibits consecutively and indicate on each demonstrative exhibit the number of the document(s) from which it is derived. The party submitting such exhibits shall provide them in electronic and, if requested, hard copy to the other party, the Tribunal Members, the Tribunal Secretary, the court reporter(s) and interpreter(s) at the hearing at a time to be decided at the pre-hearing organizational meeting.
For avoidance of doubt, a chart, table, graph, or other means of representation that has not as such been previously introduced but is composed (exclusively) of information that is on the record, falls within the above description of a Demonstrative Exhibit.
Conclusion
In summary, demonstrative exhibits are useful tools in international arbitration. They help in presenting evidence, clarifying complex issues, supporting witness testimonies, and making the arbitration process more efficient and persuasive. However, they should be used sparingly as their goal is not to replace direct evidence. As rightly pointed out by Nicolas Fletcher, “[C]are needs to be taken to ensure that presentational gimmicks do not prevail over substance and that time is not wasted on unnecessary attempts to deploy or demonstrate counsel’s full range of technological skills which do not advance the tribunal’s understanding of the case.”[7]
[1] B. Ehle, Effective Use of Demonstrative Exhibits in International Arbitration, Czech (& Central European) Yearbook of Arbitration (2012), pp. 43-59.
[2] Black’s Law Dictionary (7th ed., 1999), p. 577.
[3] G. Born, International Commercial Arbitration (3rd ed., 2021), p. 2468.
[4] B. Ehle, Effective Use of Demonstrative Exhibits in International Arbitration, Czech (& Central European) Yearbook of Arbitration (2012), p. 54.
[5] B. Ehle, Effective Use of Demonstrative Exhibits in International Arbitration, Czech (& Central European) Yearbook of Arbitration (2012), p. 54.
[6] Mainstream Renewable Power Ltd. v. Federal Republic of Germany, ICSID Case No. ARB/21/26, Procedural Order No. 9, 22 August 2023, paras. 36-39.
[7] N. Fletcher, The Use of Technology in the Production of Documents, ICC Special Supplement 2006 : Document Production in International Arbitration, p. 108.