With many commercial disputes today, the contract is no longer the only document that determines the outcome of the case. Many disputes are determined from a series of emails, an exchange on Microsoft Teams, or even a few Zalo messages between people who directly make transactions. This reflects the fact that business activities have shifted sharply to the digital environment, while most of the daily transactions are not recorded in official documents.
Emails record the negotiation process. Microsoft Teams records online meetings, exchange history, and shared document files.
Therefore, electronic evidence is increasingly playing a central role in arbitration proceedings. However, the fact that a document exists in electronic form does not mean that it is automatically of probative value. The question that arbitral tribunals often have to address is not "whether there is an email or not", but whether the email is reliable enough to prove a legal fact.
The line between "a convincing evidence" and "a worthless document" often lies only in the ability to prove the authenticity, integrity and context of the formation of electronic data.
Electronic evidence is increasingly becoming the "main witness"
If in the past, commercial disputes often revolved around contracts, appendices, acceptance minutes or invoices, today most of the negotiation and transaction implementation process takes place on digital platforms.
Emails record the negotiation process. Microsoft Teams records online meetings, exchange history, and shared document files. Zalo has become a popular work exchange tool between Vietnamese businesses and customers, suppliers, and partners.
In many cases, these messages reflect the contract implementation process more fully than the signed document. An email confirming the extension of the delivery deadline, a Zalo message agreeing to change the payment method, or a meeting recording on Teams agreeing to adjust the project design can all become an important basis in determining the rights and obligations of the parties.
This makes modern arbitration disputes not only the comparison and examination of contract terms but also the process of recreating the entire history of electronic transactions between parties.
Arbitration does not place emphasis on the form of evidence
One of the major advantages of commercial arbitration is the flexibility in receiving evidence.
Unlike many traditional proceedings, which have quite strict requirements on the form of evidence, arbitration proceedings give the arbitral tribunal the right to actively assess the value of each document on the basis of the entire case file.
That means that emails, messages, data from Teams, Zalo or other electronic platforms can all be reviewed if they are related to the dispute. However, this flexibility does not mean that the arbitral tribunal will accept all electronic documents submitted. The freedom to evaluate evidence also places higher requirements on the quality and reliability of evidence.
In other words, the arbitrator does not ask on what basis the evidence was created, but is more concerned with whether the evidence honestly reflects the facts to be proved.
Emails are usually more powerful than screenshots
In practice, email is still the most valuable type of electronic evidence.
Not because emails take precedence over other platforms, but because they often store a lot of technical information such as the sender address, recipient, time of sending, transmission server, previous mail strings, and many other identifying data.
These data help the arbitral tribunal to have a basis to check the authenticity of the document.
In contrast, screenshots often only reflect the displayed content without fully showing metadata or data formation history. A full screenshot can be cropped, edited, or only partially reflect the exchange.
This does not mean that screenshots do not have proof value. However, if you rely only on photos without original data or other supporting evidence, the weight of proof is often quite limited.
This is also why in many international disputes, parties are often required to present original emails or electronic data in the original format instead of just submitting printed copies.
Teams and Zalo pose more challenges
If email is relatively stable, instant communication platforms such as Microsoft Teams or Zalo pose more complex problems.
Firstly, the content can be edited or deleted after submission.
Second, access to data depends on the user account or the platform's hosting policy.
Third, data export often only creates a copy rather than the original data.
Especially with Zalo, most of the communication takes place on mobile devices. When changing phones, losing accounts, or running out of data synchronization time, many exchanges may no longer be fully restored.
Meanwhile, Microsoft Teams has the advantage of being often integrated with enterprise ecosystems such as Microsoft 365. Many organizations keep access logs, document edit history, when files were created or edited, and other technical information, making it easier to validate evidence if the data management system is fully established.
The value of proof does not lie in the content but in the authenticity
The arbitral tribunal is usually interested in questions. Who actually sends the message? Is the message modified after it has been created? Is the data string complete or only a selected part? Can the device, account or server confirm the origin of the data? Does the sender have the authority to represent the business or just an ordinary employee?
An email that has perfect content but can't identify the actual sender can carry less value than a full email sequence with clear data.
Similarly, a Zalo message acknowledging the payment obligation may not be enough to prove if the other party can prove that the account has been used by someone else or the content has been edited.
An element that is increasingly valued in international arbitration is the chain of custody.
The chain of evidence determines reliability
An element that is increasingly valued in international arbitration is the chain of custody.
This concept reflects the entire process from the time the data is created, stored, collected, copied, transferred until it is presented to the arbitral tribunal. If it cannot be proven that the data has always been preserved intact throughout this process, the risk of integrity being doubted will increase significantly.
In many cases, businesses only print out the email or forward it to the lawyer without keeping the original. By the time a dispute occurs, important technical data is gone, making authentication difficult.
That is why more and more businesses apply the process of preserving electronic evidence as soon as a dispute arises, including backing up data, restricting editing, recording the time of collection and keeping data processing logs.
Not all evidence collected can be used
Another issue that is often overlooked is the legality of the collection of evidence.
In an effort to protect their rights, many businesses seek to illegally access employees' emails, copy data from personal phones, or record meetings without the parties being notified. These documents may contain important information but at the same time give rise to privacy, personal data protection, business secrets, or professional secrets.
In arbitral proceedings, the arbitral tribunal not only considers the value of proof but also considers whether the evidence is collected by an appropriate method or not. A piece of evidence with very convincing content but illegally collected can significantly reduce the weight of proof, even affecting the fairness of the entire proceedings.
What do businesses need to prepare before a dispute occurs?
Practice shows that the value of electronic evidence is decided long before a dispute arises.
Businesses need to develop regulations on the use of email and business exchange platforms, clearly stipulating which accounts are used in official transactions, who has the authority to make commitments on behalf of the business, and a mechanism for storing data throughout the transaction lifecycle. At the same time, there are policies on backup, data preservation, system log keeping, and legal evidence retention processes to preserve data when there are signs of disputes.
For high-value transactions, businesses should also not rely solely on exchanges on Zalo or Teams. Any important changes in price, schedule, scope of work, or payment conditions should be confirmed by email or contract addendum to create a more complete and authentic chain of evidence.
In the digital age, electronic data has become a very important element of business operations. But just like the testimony of a witness, data is only really valuable when it can be proven that it is genuine, complete, and reliable. It is also the biggest limitation of electronic evidence in arbitration proceedings: technology can record every exchange, but only data that passes the tests of authenticity, integrity, and legitimacy can become the basis for a fair judgment.
