Chapter 15 - § 15.4 • EVIDENCE

• Jurisdiction: Colorado

§ 15.4 • EVIDENCE

Absent agreement of the parties, an arbitrator is not obligated to apply any rules of evidence.¹⁵ However, there are perhaps at least some "due process" conceptual limitations as to evidence that an arbitrator must hear, at least insofar as evidence that the arbitrator may rely upon. The "courts give great deference to an arbitrator's decision to control the order, procedure, and presentation of evidence."¹⁶

Perhaps there are also extreme limits as to what an arbitrator should not hear.

The statutes provide very little guidance as to what evidence should or should not be heard by the arbitrator. FAA § 10(a)(3) and C.R.S. § 13-22-223(1)(c) (2016) both provide that the district court may vacate an award where the arbitrators refused to hear evidence pertinent and material to the controversy.

However, all evidence that is material or pertinent may not have to be admitted.

"The arbitrator is not bound to hear all of the evidence tendered by the parties; however, he must give each of the parties to the dispute an adequate opportunity to present evidence." An evidentiary error "must be one that is not simply an error of law, but which so affects the rights of a party that it may be said that he was deprived of a fair hearing."¹⁷

If the parties agree that the AAA Commercial Arbitration Rules shall apply, Rule R-34 provides:

(a) The parties may offer such evidence as is relevant and material to the dispute and shall produce such evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. Conformity to legal rules of evidence shall not be necessary. All evidence shall be taken in the presence of all of the arbitrators and all of the parties, except where any of the parties is absent, in default, or has waived the right to be present.
(b) The arbitrator shall determine the admissibility, relevance, and materiality of the evidence offered and may exclude evidence deemed by the arbitrator to be cumulative or irrelevant.

(c) The arbitrator shall take into account applicable principles of legal privilege, such as those involving the confidentiality of communications between a lawyer and client.

(d) An arbitrator or other person authorized by law to subpoena witnesses or documents may do so upon the request of any party or independently.

§ 15.4.1—FAA

The FAA does not define what evidence is to be excluded or admitted in the arbitration hearing. Section 10(a)(3) provides the district court may vacate an award...