Judicial Assistance In Evidence Collection For Arbitration: Practical Breakthroughs Based On Authority From The Shanghai International Commercial Court

Abstract:

In May 2025, the Shanghai International Commercial Court, for the first time, granted orders in support of evidence collection in international commercial arbitration through the issuance of an investigation order. This marked a significant breakthrough in the development of mechanisms for coordination between arbitration and judicial proceedings in China. The case not only provided a workable path for evidence collection in arbitration, but also strengthened institutional confidence in conducting international arbitration within China. This article systematically reviews the legal basis of arbitral tribunals' authority to collect evidence in China and, using the investigation order systems of Shanghai and Guangdong as representative examples, analyzes the relevant local regulations and their practical applications. On this foundation, with reference to the UNCITRAL Model Law on International Commercial Arbitration as well as the relevant provisions and practices of the United States, the United Kingdom, and Switzerland, the article further explores the future development of the evidence-gathering mechanism. Finally, based on the current institutional framework, this article offers practical observations and recommendations to arbitration practitioners.

I.Introduction

In May 2025, the Shanghai International Commercial Court, upon reviewing an application submitted by the Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Center) for evidence collection on the basis of an interim measure granted by the arbitral tribunal, issued an investigation order to assist in obtaining relevant evidence. This marked the first time that the Court supported international commercial arbitration in evidence collection through the issuance of an investigation order, reflecting the judiciary's role in providing coordinated support for international arbitration.¹

The case arose from a dispute over a cross-border data services contract involving a Hong Kong company, a foreign company, and a Jiangxi-based company in China. The core issue in the arbitration was whether the contract had been validly concluded between the parties, which in turn depended on verifying the identities of the parties' transaction representatives. However, the only retained information of these representatives took the form of their WeChat accounts, and the registration details of these accounts were difficult to verify. Consequently, the parties applied to the arbitral tribunal for assistance in evidence collection. Although the arbitration institution issued a letter requesting cooperation from a third party, the request was refused, and evidence collection was obstructed, causing the arbitral proceedings to stall. Subsequently, the arbitral tribunal issued a formal interim measure. The arbitration institution then applied, through the Shanghai Courts' "One-Stop" International Commercial Dispute Resolution Platform, to the Shanghai International Commercial Court for an investigation order. After examination, the Court, in accordance with the Measures of the Shanghai High People's Court on Issuing Investigation Orders to Assist Arbitration in Evidence Collection (Trial), issued an investigation order, thereby facilitating the progress of evidence collection in the arbitration.²

The successful issuance of this investigation order not only advanced the resolution of the individual case, but also promoted the effective linkage between arbitration and judicial proceedings in China. The practical application of the arbitral investigation order constitutes a positive response to the concept of "Court Assistance in Taking Evidence" under international arbitration rules, forming an institutional pathway within the Chinese framework for dispute resolution. It provides a new direction for the integration of China's arbitral system with judicial procedures. This article will systematically review the institutional basis for and current practice of evidence collection in the context of arbitration in China. Thereafter, drawing on international rules and comparative experiences from other jurisdictions, this article will also explore the practical implications for arbitration in practice.

II.Normative Framework and Practice of Evidence Collection in Arbitration in China

To better understand the institutional basis and operational pathways for evidence collection in arbitration in China, this section reviews the legal foundations, local regulations, and practical application of the relevant legal principles in this area, thereby outlining the overall system and current practice of arbitral evidence collection in China.

1. Legal Basis for Arbitral Tribunals' Power to Collect Evidence

China's Arbitration Law grants arbitral tribunals the authority to collect evidence on their own initiative under certain circumstances. According to Article 43, while parties bear the burden of proof for their claims, the arbitral tribunal may, where it deems necessary, collect evidence on its own.³ Although this provision expressly confers the power of "collecting evidence independently" on arbitral tribunals, its effectiveness remains rather limited. In practice, when evidence collection is required in arbitration proceedings, it is usually carried out by the arbitration institution, which issues a letter of assistance for investigation, with the said letter then being presented by the parties or the tribunal to the relevant entities for the purpose of retrieving evidence. However, because such letters carry no coercive force, they often fail to achieve substantive results. This is particularly the case when evidence is sought from government authorities or institutions, which frequently refuse to cooperate on the ground that "letters of assistance lack binding force," thereby hindering effective evidence collection in arbitration.⁴

The Arbitration Law also provides for judicial support in relation to evidence in arbitration. Under Article 46, when evidence may be destroyed or may be difficult to obtain in the future, a party may apply for evidence preservation, which the arbitration commission will forward to the basic people's court at the location of the evidence for disposition.⁵ However, the scope of this provision is very limited, as it only applies to evidence preservation and fails to address the broader need for routine evidence collection in arbitration.

At present, the lack of coercive power on the part of arbitral tribunals in evidence collection, and the limited effectiveness of judicial assistance, weakens the effectiveness of arbitration in obtaining evidence and ascertaining facts. This, in turn, undermines the efficient resolution of disputes and diminishes the credibility of the arbitral system.

However, this long-standing deficiency in the tribunal's authority to collect evidence has now been further addressed at the legislative level. On September 12, 2025, the Standing Committee of the Fourteenth National People's Congress, at its Seventeenth Session, adopted the newly revised Arbitration Law of the People's Republic of China (hereinafter referred to as the "New Arbitration Law"). Article 55 of the New Arbitration Law, while retaining the arbitral tribunal's authority to "collect evidence on its own", adds a new provision stipulating that the tribunal "may, when necessary, request that relevant entities provide assistance in accordance with the law".⁶ This revision provides a clearer statutory basis for arbitral investigation and evidence collection. Meanwhile, Article 58 further specifies that people's courts "shall handle [such requests] in a timely manner in accordance with the law", and expressly allows parties to an arbitration agreement to apply for evidence preservation before the commencement of arbitration should the need be urgent.⁷ Although the new law will not take effect until March 1, 2026, these amendments formally establish, at the national legislative level, the principle of judicial assistance in arbitral evidence collection. They signify that China's mechanism for coordination between arbitration and the judiciary is entering a new stage of development, under which mechanisms such as investigation orders are expected to become increasingly institutionalized and workable.

2. Local Regulations on Evidence Collection in Arbitration

While legislative improvements are being made at the national level, local judicial practice has also developed. In recent years, regions like Shanghai and Guangdong have, through judicial documents or local regulations, introduced a system of arbitral investigation orders aimed at addressing the ineffectual nature of arbitral tribunals' power to collect evidence. However, in many other parts of the country, the authority of arbitral tribunals to collect evidence remains primarily embodied in the relevant arbitration rules, without a mechanism that imposes binding obligations on external entities.

For example, Article 34 of the Beijing Arbitration Commission Arbitration Rules and Article 45 of the Xi'an Arbitration Commission Arbitration Rules both provide that, where a party applies and the arbitral tribunal considers it necessary, or on the tribunal's own motion, the tribunal may investigate the facts and collect evidence on its own initiative.⁸ Although these arbitration rules further make reference to Article 43 of the Arbitration Law, their effect remains confined to the arbitral proceedings themselves. They cannot impose obligations of cooperation on external third parties, lack coercive force, and therefore do not particularly assist evidence collection in arbitration.

By contrast, local legislation in Shanghai and Guangdong has taken the lead nationwide, establishing a system of arbitral investigation orders and thereby providing institutional judicial support for arbitral tribunals in evidence collection. Shanghai, through multi-level regulations such as the Regulations of Shanghai Municipality on Optimizing Business Environment, the Regulation of the Shanghai Municipality on Promoting the Initiative for an International Commercial Arbitration Center, and the Measures of the Shanghai High People's Court on Issuing Investigation Orders to Assist Arbitration in Evidence Collection (Trial), has built a mechanism covering both domestic and foreign arbitration institutions and various types of cases. Guangdong, for its part, has progressively improved its support system for arbitral investigation orders through policy documents such as the Decision of the Standing Committee of the People's Congress of Guangdong Province on Strengthening Legal Services to Promote the Development of the Guangdong–Hong Kong–Macao Greater Bay Area, the Three-Year Action Plan for Optimizing the Business Environment in Guangdong Province (2023–2025), and the Measures of the Guangdong High People's Court on Issuing Investigation Orders to Assist Commercial Arbitration Institutions in Evidence Collection (Trial).

3. Operational Mechanism of Arbitral Investigation Orders

On the basis of the gradual establishment of normative rules for evidence collection in arbitration, the relevant operational mechanisms are directly related to whether the system can be effectively implemented. Building on their respective local regulations, the courts in Shanghai and Guangdong have issued the Measures of the Shanghai High People's Court on Issuing Investigation Orders to Assist Arbitration in Evidence Collection (Trial) and the Measures of the Guangdong High People's Court on Issuing Investigation Orders to Assist Commercial Arbitration Institutions in Evidence Collection (Trial) respectively. Using these measures as examples, the following section sets out the specific procedural steps for applying for an investigation order in arbitration.

4. Practical Cases of Investigation Orders in Arbitration

The following section selects representative cases of investigation orders from Shanghai and Guangdong. These cases are organized according to the type of dispute, the arbitration institution involved, the court of acceptance, the evidence requested, and the legal basis and reasoning for the court's decision to issue the investigation order. This serves to provide a snapshot of how the investigation order system operates in practice.

Based on the foregoing cases, it can be observed that when courts in Shanghai and Guangdong receive applications for investigation orders from arbitration institutions, they generally review the following aspects of the case:

First, the relevance of the evidence — that is, whether the evidence requested is directly related to the dispute in question and is indeed necessary for the arbitral tribunal to render its award. For example, in examining the application for an investigation order in the cross-border data services contract dispute, the Shanghai International Commercial Court considered the WeChat account registration information requested to be indispensable evidence for deciding the arbitral dispute, and thus treated it as an important basis for granting the investigation order.

Second, the necessity of evidence collection — that is, whether the parties and the arbitral tribunal, despite having made reasonable efforts, are still unable to collect the relevant evidence on their own, therefore requiring judicial assistance. For instance, in the Heyuan construction project contract dispute and the Guangzhou contract for work dispute, the requested information was not accessible to non-judicial entities or individuals, which restricted the tribunal's ability to collect the evidence and necessitated the court's assistance.

Third, the procedural legality involved — that is, whether the arbitral tribunal's application for an investigation order falls within the applicable scope, meets the conditions for application, and complies with all relevant procedural requirements. In both the Shanghai cross-border data services contract dispute and the Guangzhou contract for work dispute, the courts found that the tribunal's applications were procedurally proper and the supporting materials complete, and therefore granted the applications.

III.Comparative Perspectives

The following section considers the UNCITRAL Model Law on International Commercial Arbitration (hereinafter referred to as the "Model Law") and the mechanism of seeking court assistance for arbitral evidence-gathering in major jurisdictions such as the United States, the United Kingdom, and Switzerland. The features of the foreign institutional design are specifically considered, and serve as comparative references for assessing China's system.

1. Model Law: Establishing the Basic Framework for Court Assistance in Evidence Collection

Article 27 of the Model Law expressly provides that, with the approval of the arbitral tribunal, either the tribunal or a party may request assistance from a competent court of the State in taking evidence. The court may, within the limits of its competence and according to its rules on taking evidence, grant such a request.¹³ This provision provides a basis for institutional support for arbitral tribunals in obtaining evidence, and is a useful starting point.

2. United States: Strong Arbitral Powers and Limited Judicial Intervention

In the United States, the Federal Arbitration Act grants arbitral tribunals broad powers in evidence-taking, including the authority to subpoena witnesses and to order the production of documents.¹⁴ Courts generally provide assistance only in exceptional circumstances, particularly in urgent cases involving evidence preservation. For example, in Ferro Union Corp. v. SS Ionic Coast,¹⁵ the claimant sought pre-arbitration investigation of a vessel docked at the Port of Houston. Given the vessel's imminent departure and the risk of evidence being lost, the court approved a narrowly tailored investigation request. The court also emphasized that this measure did not interfere with the arbitral proceedings themselves, but rather provided the tribunal with potentially critical factual support. The U.S. model highlights the principle of tribunal-led proceedings, with courts playing a supplementary role. This contrasts with the current situation in China, where arbitral tribunals often depend on court assistance in the context of evidence-gathering.

3. United Kingdom: Flexible Court Assistance with Tribunal Powers Centered on the Parties

Under the Arbitration Act 1996, the powers of arbitral tribunals to collect evidence are primarily limited to orders made and issued to the parties to the arbitration. These typically take the form of ordering disclosure of documents or inspection of property.¹⁶ Where the tribunal lacks sufficient authority or is unable to act effectively, the courts may intervene by exercising their powers in support of arbitral proceedings, including by ordering third parties to provide evidence or testimony.¹⁷ In A and B v. C, D and E, the applicants sought to compel a non-party to provide testimony in support of arbitration proceedings seated in New York, invoking Section 44 of the Arbitration Act. At first instance, the Court dismissed the application primarily because section 44 was held to not apply to non-parties, and additionally because the preconditions under section 43 for securing witness attendance, namely that the witness be in the United Kingdom and that the arbitration be seated in England and Wales or Northern Ireland, were not satisfied.¹⁸ On appeal, the Court of Appeal overturned this decision, holding that Section 44 could apply to foreign arbitrations and to non-parties.¹⁹ This demonstrates that while the United Kingdom has clearly defined boundaries for court assistance in arbitral evidence collection, its system also embodies nuanced rules regarding the scope of evidence and the parties involved.

4. Switzerland: A Comprehensive System of Tribunal-Led Proceedings with Court Support

Switzerland regulates domestic arbitration under the Swiss Code of Civil Procedure and international arbitration under the Federal Act on Private International Law. Both statutes explicitly grant arbitral tribunals the authority to collect evidence independently. Where judicial assistance is needed in evidence collection or other procedural matters, the tribunal, or a party with the tribunal's approval, may apply to a competent court.²⁰ Furthermore, if interim measures ordered by the tribunal are not complied with, courts may enforce them upon application.²¹ Switzerland's institutional design reflects a highly standardized and transparent mechanism that ensures arbitral independence while simultaneously providing robust judicial support to facilitate the smooth conduct of proceedings.

In sum, although the approaches of these jurisdictions differ in the scope and intensity of court assistance in evidence collection, they share a common principle: safeguarding the independence of arbitration while enhancing its effectiveness through clear statutory authorization and procedural safeguards. For China, these experiences provide valuable comparative insights for understanding the practical value and future development of its own system.

IV.Conclusion

With the gradual implementation of the investigation order system in arbitration, a framework of coordination between arbitral tribunals and courts is taking shape in Chinese arbitration practice. This allows for greater operability and practical utility in the evidence-gathering process.

From a practical perspective, parties should strengthen their awareness in relation to the preservation of evidence prior to the disputes occurring. They should also actively cooperate with interim measures and investigative arrangements during arbitration proceedings. Arbitration institutions, on the basis of existing rules, should further standardize the procedures for applying for investigation orders, and establish communication mechanisms with local courts. Lawyers, as key actors in the process of arbitral evidence collection, must master the relevant mechanisms, design effective investigative strategies, and enhance the efficacy of their case management.

In sum, the practical advancement of the investigation order system not only optimizes the fact-finding mechanism of arbitral proceedings, but also enhances China's institutional attractiveness as a seat of international arbitration. For all stakeholders in arbitration practice, timely understanding and effective use of this tool will be an important means of improving the efficiency of dispute resolution. Looking forward, as judicial assistance rules are further refined, investigation orders will become an essential bridge linking arbitral efficiency with judicial authority, laying a solid foundation for the internationalization of Chinese arbitration.

Sincere thanks are extended to intern Weibing Chen for her contribution to this work.

Footnotes

1. Shanghai International Commercial Court Issued an Investigation Order to Assist in Evidence Collection for International Commercial Arbitration. Supreme People’s Court of the People’s Republic of China<https://www.court.gov.cn/zixun/xiangqing/465981.html>

2. China’s First Case! Shanghai International Commercial Court Issued an Investigation Order in Support of Interim Measures in International Arbitration. Shanghai First Intermediate People’s Court<https://mp.weixin.qq.com/s/-FPCv4OCtt2XrYPqUDKCdg>

3. Arbitration Law of the People’s Republic of China (2017 Amendment)

Article 43 Parties shall provide evidences in support of their own arguments.

The arbitration tribunal may, as it considers necessary, collect evidences on its own.

4. Wang Xiaoxin. Beijing Arbitration Feature | Feasible Pathways for Evidence Collection by Arbitral Tribunals in Chinese Commercial Arbitration. Beijing Arbitration Commission<https://mp.weixin.qq.com/s/3dacXu5RhG8FwycHazWp1w>

5. Arbitration Law of the People’s Republic of China (2017 Amendment)

Article 46 Under circumstances where the evidence may be destroyed or lost or difficult to obtain at a later time, a party may apply for preservation of the evidence. If a party applies for preservation of the evidence, the arbitration commission shall submit his application to the basic people’s court in the place where the evidence is located.

6. Arbitration Law of the People’s Republic of China (2025 Revision)

Article 55 A party shall provide evidence in support of its own claims.

The arbitration tribunal may, as it considers necessary, collect evidence on its own initiative, and may, when necessary, request relevant entities to provide assistance in accordance with the law.

7. Arbitration Law of the People’s Republic of China (2025 Revision)

Article 58 Where any evidence may be destroyed or lost or difficult to obtain at a later time, a party may apply for evidence preservation. If a party applies for evidence preservation, the arbitral institution shall refer the application to the primary people’s court at the place where the evidence is located, and the people’s court shall handle it in a timely manner in accordance with the law.

In case of emergency, a party to an arbitration agreement may, before applying for arbitration, apply to the people’s court for evidence preservation in accordance with the relevant provisions of the Civil Procedure Law of the People’s Republic of China. If a party applies for evidence preservation, the people’s court shall handle it in a timely manner in accordance with the law.

8. Beijing Arbitration Commission Arbitration Rules (2022)

Article 34: Investigation and Collection of Evidence by the Arbitral Tribunal

(1) If a party makes an application and the Arbitral Tribunal considers it necessary, or there is no such application but the Arbitral Tribunal considers it necessary according to the particular circumstances of the case, the Arbitral Tribunal may undertake investigations and/or collect evidence on its own initiative.

Xi’an Arbitration Commission Arbitration Rules (2023)

Article 45 Investigation by the Arbitral Tribunal

(1) Where a party makes an application and the Arbitral Tribunal deems it necessary, or where there is no such application but the Tribunal deems it necessary based on the particular circumstances of the case, the Tribunal may conduct investigations and collect evidence on its own initiative.

9. China’s First Case! Shanghai International Commercial Court Issued an Investigation Order in Support of Interim Measures in International Arbitration. Shanghai First Intermediate People’s Court<https://mp.weixin.qq.com/s/-FPCv4OCtt2XrYPqUDKCdg>

10. SHAC Updates｜Shanghai Arbitration Commission Obtains the First Investigation Order Assisting an Arbitration Institution. Shanghai Arbitration Commission<https://mp.weixin.qq.com/s?__biz=MzA3NzQ2NjY5NA==&mid=2650369007&idx=1&sn=8ff627a7833442c7f9483ab1fd67b2a5&chksm=875c56c6b02bdfd0dede49904ac674ccfe9e177b220d6d6bd48aaf7e62f99c8ab88298d167b8&scene=27>

11. [Hefa Action] The City’s First Heyuan Court Issues an Investigation Order in a Commercial Arbitration Case. Heyuan Intermediate People’s Court<https://mp.weixin.qq.com/s/7193VxwdNelKe4xrHza5dA>

12. The First Investigation Order, Tackling the Difficulties of Evidence Collection in Arbitration. Zhongshan Intermediate People’s Court<https://mp.weixin.qq.com/s/q-4vScoeiz-wiFqfwqMFZw>

13. UNCITRAL Model Law on International Commercial Arbitration 1985 With amendments as adopted in 2006

Article 27. Court assistance in taking evidence

The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of this State assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.

14. U.S. Code: Title 9 — ARBITRATION

§7 - Witnesses before arbitrators; fees; compelling attendance

The arbitrators selected either as prescribed in this title or otherwise, or a majority of them, may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case.

15. Ferro Union Corp. v. SS Ionic Coast, Civ. A. No. 67-H-662

16. Arbitration Act 1996

34 Procedural and evidential matters.

(1)It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter.

(2)Procedural and evidential matters include—

(d)whether any and if so which documents or classes of documents should be disclosed between and produced by the parties and at what stage;

(e)whether any and if so what questions should be put to and answered by the respective parties and when and in what form this should be done;

(f)whether to apply strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material (oral, written or other) sought to be tendered on any matters of fact or opinion, and the time, manner and form in which such material should be exchanged and presented;

(g)whether and to what extent the tribunal should itself take the initiative in ascertaining the facts and the law;

(h)whether and to what extent there should be oral or written evidence or submissions.

38 General powers exercisable by the tribunal.

(4)The tribunal may give directions in relation to any property which is the subject of the proceedings or as to which any question arises in the proceedings, and which is owned by or is in the possession of a party to the proceedings—

(a)for the inspection, photographing, preservation, custody or detention of the property by the tribunal, an expert or a party, or

(b)ordering that samples be taken from, or any observation be made of or experiment conducted upon, the property.

(5)The tribunal may direct that a party or witness shall be examined on oath or affirmation, and may for that purpose administer any necessary oath or take any necessary affirmation.

(6)The tribunal may give directions to a party for the preservation for the purposes of the proceedings of any evidence in his custody or control.

17. Arbitration Act 1996

43 Securing the attendance of witnesses.

(1)A party to arbitral proceedings may use the same court procedures as are available in relation to legal proceedings to secure the attendance before the tribunal of a witness in order to give oral testimony or to produce documents or other material evidence.

(2)This may only be done with the permission of the tribunal or the agreement of the other parties.

(3)The court procedures may only be used if—

(a)the witness is in the United Kingdom, and

(b)the arbitral proceedings are being conducted in England and Wales or, as the case may be, Northern Ireland.

(4)A person shall not be compelled by virtue of this section to produce any document or other material evidence which he could not be compelled to produce in legal proceedings.

44 Court powers exercisable in support of arbitral proceedings.

(1)Unless otherwise agreed by the parties, the court has for the purposes of and in relation to arbitral proceedings the same power of making orders (whether in relation to a party or any other person) about the matters listed below as it has for the purposes of and in relation to legal proceedings.

(2)Those matters are—

(a)the taking of the evidence of witnesses;

(b)the preservation of evidence;

(c)making orders relating to property which is the subject of the proceedings or as to which any question arises in the proceedings—

(i)for the inspection, photographing, preservation, custody or detention of the property, or

(ii)ordering that samples be taken from, or any observation be made of or experiment conducted upon, the property;

and for that purpose authorising any person to enter any premises in the possession or control of a party to the arbitration;

(d)the sale of any goods the subject of the proceedings;

(e)the granting of an interim injunction or the appointment of a receiver.

(3)If the case is one of urgency, the court may, on the application of a party or proposed party to the arbitral proceedings, make such orders as it thinks necessary for the purpose of preserving evidence or assets.

18. A, B v C, D and E, (2020) EWHC 258 (Comm)

19. A and B v C, D and E, [2020] EWCA Civ 409

20. Swiss Code of Civil Procedure

Art. 375 Taking of evidence and assistance by the state court

(1) The arbitral tribunal shall conduct the taking of evidence itself.

(2) If the taking of evidence or any other procedural step by the arbitral tribunal requires the assistance of the state judicial authorities, the arbitral tribunal may seek the assistance of the competent state court pursuant to Article 356(2). With the consent of the arbitral tribunal, this may also be done by a party.

Federal Act on Private International Law

Art. 184

1 The arbitral tribunal takes the evidence itself.

2 Where state legal assistance is required for the taking of evidence, the arbitral tribunal or a party with the consent of the arbitral tribunal may request the participation of the state court at the seat of the arbitral tribunal.

21. Swiss Code of Civil Procedure

Art. 374 Provisional measures, security and damages

(1) The state court or, unless the parties have agreed otherwise, the arbitral tribunal may at the request of a party order provisional measures, including measures for the preservation of evidence.

(2) If the party concerned does not voluntarily comply with a measure ordered by the arbitral tribunal, the state court shall, at the request of the arbitral tribunal or a party, make the necessary orders; if a party makes the request, the consent of the arbitral tribunal must be obtained.

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