Factual evidence plays the key role in international arbitration, as in all dispute resolution. It is generally accepted that a claim or defence of a party needs to be supported by evidence. However, a question arises about the admissibility of illegally obtained evidence in international arbitration. How do arbitral tribunals approach this issue?
Evidence in International Arbitration
Evidence plays a crucial role in every adjudication procedure. In most dispute settlement mechanisms, a party's submission must be proven by evidence to establish its credibility. This position is, for instance, reflected in the Spanish Code of Civil Procedure, which specifies that:
All claims and responses shall be accompanied by:
(i) The documents on which the parties base their right to the judicial protection they claim. 1
Similarly, the ICSID Arbitration Rules provide that:
Each party has the burden of proving the facts relied on to support its claim or defense. 2
Although the legal world is a mosaic consisting of different jurisdictions, "[t]here is a commonality between legal families and within public international law as to the application of the burden of proof in any case[;] [i]t is widely accepted that a party seeking to rely on a particular fact has the burden of establishing it". 3
This universal principle is also applicable in international arbitration proceedings.
Rules Governing Evidence in Arbitration
International arbitration is not governed by a single set of rules. The rules concerning evidentiary proceedings in international arbitration differ from dispute to dispute. The rules can be found in arbitration rules, national laws, or rules of evidence selected by the parties. The myriad of rules applicable to evidence leads to different approaches to contentious issues, such as the admissibility of illegally obtained evidence in international arbitration. The fact that decisions of other arbitral tribunals do not bind arbitral tribunals also leads to diverging interpretations of the same provisions.
The IBA Rules on the Taking of Evidence in International Arbitration is a set of guidelines drafted and updated by practitioners and scholars as a resource to parties and arbitrators to provide an efficient and fair process for the taking of evidence in international arbitration. 4 Arbitral tribunals often incorporate these rules as guidance in the evidentiary proceedings. The IBA Rules provide the following rule on the admissibility of illegally obtained evidence:
The Arbitral Tribunal may, at the request of a Party or on its own motion, exclude evidence obtained illegally. 5
However, unlike the almost universal agreement on the role of evidence in adjudicatory proceedings, there is no single, global approach to illegally obtained evidence. In the vast majority of arbitral proceedings, the issue of determining the admissibility of evidence (both legally and illegally obtained) is a task of the arbitral tribunal. 6
Therefore, arbitral tribunals often employ broad legal concepts to attempt to justify excluding or admitting illegally obtained evidence. As there is no clear guidance, arbitral tribunals are tasked with striking a precarious balance between the parties' right to be heard and the need to produce an award that is consistent with public policy. 7
Where Is the Balance Found?
Arbitral tribunals faced with the admissibility of illegally obtained evidence in international arbitration need to exercise a balancing exercise. In the Corfu Channel case, the newly established International Court of Justice held that although the United Kingdom obtained evidence in violence of Albania's sovereignty the evidence was admissible. 8
On the other hand, the International Court of Justice has also taken the opposite position. In United States Diplomatic and Consular Staff in Tehran, Iran sought to justify its actions on the basis that the US had improperly or unlawfully interfered in Iranian affairs, and the question of hostages represented a marginal and secondary aspect of an overall problem. The Court did not address the admissibility of the documents in question, as Iran did not appear in the proceedings. However, the approach of the Court shows that it would not admit evidence obtained in violation of international conventions. 9
A similar approach to the admissibility of illegally obtained evidence in international arbitration was taken by the arbitral tribunal in Methanex Corp v USA, which held that evidence gathered in a manner inconsistent with duties of good faith (here, trespass) was not admissible. 10
In Libanaco Holdings v Turkey, faced with surveillance of the claimant's potential witness and counsel, an ICSID tribunal held that:
all emails (including attachments) and communications intercepted by or under the direction of the Public Prosecutor which in any way relate to this arbitration have been or will within a period of 30 days be destroyed. 11
Lastly, the claimant in Caratube v Kazakhstan alleged that its offices were raided by Kazakhstan's Committee of National Security in search of documents, files, disks and hard drives. The tribunal held the documents to be admissible on the condition that:
– all documents taken by Respondent shall be preserved by Respondent,
– Respondent will grant to representatives of Claimant access to all documents of [sic] to which Claimant requests access,
– the Representatives of Claimant may copy any such documents,
– Representatives of Claimant may take such copies out of Kazakhstan to London. 12
The above decisions show no single approach to the admissibility of illegally obtained evidence in international arbitration. Balancing the parties' rights tends to protect the party from whom the documents were illegally obtained. However, as the arbitral tribunal in Caratube decided, such a decision cannot be to the detriment of the other party's rights.
Effect of Admission of Illegally Obtained Evidence
Although arbitral tribunals have jurisdiction to decide on the admissibility of evidence, such a decision can hurt the enforceability of an award. In Germany, for instance:
An award based on illegally obtained evidence is subject to non-recognition under Article V (2) (b) if the affected interests outweigh the need for finality. Following such weighing of interests, an award based on video surveillance tapes illegally produced without the knowledge of the recorded persons has been held not to violate public policy. 13
Conclusion
Although there is no single set of rules applicable to evidence, and especially to the admissibility of illegally obtained evidence in international arbitration, the jurisprudence of the International Court of Justice and decisions of arbitral tribunals indicates that when deciding on the admissibility of illegally obtained evidence, tribunals balance the right to be heard with the right to privacy and the duty of good faith. However, the admissibility of illegally obtained evidence may impact the enforceability of the resulting award.
Footnotes
1.Law 1/2000, of 7 January, on Civil Procedure, Article 265 (Spain).
2. ICSID Arbitration Rules, Rule 36(2).
3. J. Waincymer,Procedure and Evidence in International Arbitration(Kluwer Law International 2012), 10.4.1.
4. IBA Rules on the Taking of Evidence in International Arbitration 2020, Foreword.
5. IBA Rules on the Taking of Evidence in International Arbitration 2020, Article 9.3.
6. N. Singh,A Fourfold Test for Evaluating the Admissibility of Illegally Obtained Evidence in International Arbitration, 2022 Revista Romana de Arbitraj 85.
7. N. Singh,A Fourfold Test for Evaluating the Admissibility of Illegally Obtained Evidence in International Arbitration, 2022 Revista Romana de Arbitraj 85.
8. Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), International Court of Justice, 9 April 1949, p. 36.
9. P. Ashford,The Admissibility of Illegally Obtained Evidence, 2019 Arbitration: The International Journal of Arbitration: Mediation and Dispute Management 337, p. 384.
10. Methanex v USA, Final Award, 3 August 2005, para. 53.
11. Libanaco Holdings v Turkey, ICSID Case No. ARB/06/8, Decision on Preliminary Issues, 23 June 2008, para. 82.
12. Caratube International Oil Company LLP v the Republic of Kazakhstan, ICSID Case No. ARB/08/12, Decision Regarding Claimant's Application for Provisional Measures, 31 July 2009, para. 101.
13. C. Borris, R. Hennecke, et al.,New York Convention, Article V [Grounds for Refusal of Recognition and Enforcement of Arbitral Awards], in R. Wolff (ed), New York Convention: Article-by-Article Commentary (Second Edition) 231, para. 554.
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