The 2020 Review Task Force contemplated capturing specific circumstance in which such evidence should be excluded but concluded that there was no clear consensus on the issue. The Commentary to the revised Rules emphasises the discretionary aspect: Article 9.3 provides that the ‘ Tribunal may, at the request of a Party or on its own motion, exclude evidence obtained illegally’, which reinforces the tribunal’s discretion to rule on evidence acquired illegally. In particular, the 2020 IBA Rules directly address illegally obtained evidence. The Tribunal is not required to apply the rules of evidence of any applicable law in making such determination’.( Rule 19.2) (Rule 34(1)) The SIAC Rules provided that ‘ The Tribunal shall determine the relevance, materiality and admissibility of all evidence. (Article 9(1)) Similarly, the ICSID Arbitration Rules (‘ ICSID Rules’) state that ‘ The Tribunal shall be the judge of the admissibility of any evidence adduced and of its probative value’. The IBA Rules on the Taking of Evidence in International Arbitration (‘ IBA Rules’) state that ‘ The Arbitral Tribunal shall determine the admissibility, relevance, materiality and weight of evidence’. By contrast, the ICC Arbitration Rules remain silent as to admissibility of evidence. This is mirrored in most arbitration rules. As a starting point, UNCITRAL Model Law Article 19(2) states that ‘ the power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence’.
Typically this involves conducting a balancing exercise which considers (1) the process and circumstances through which the material was obtained (and its compatibility with obligations of good faith, procedural fairness and equality of the parties) and (2) the probative value of the evidence itself (including considerations of privilege and relevance).Īrbitration rules confer broad discretion to decide issues of admissibility. ‘Hacked evidence’ refers to materials obtained through unauthorised access to an electronic system (either directly or through a third party), and usually includes emails, digital documents, electronically stored audio and video recordings, instant messages and logs, or financial transaction records.Īrbitration rules give wide latitude to tribunals to determine the admissibility of illegally obtained evidence (and evidence issues more generally). Illegally obtained evidence can take a variety of forms, including, for example, illicit recordings, information obtained by trespass, and ‘hacked evidence’. An emerging consideration in international arbitration is the use of evidence acquired illegally.