Kartik Gupta attempts to resolve the dilemma faced in the exercise of the tribunal‘s discretionary power to balance the flexibility of the arbitration process on one hand, and the need to ensure a fair trial on the other.
Abstract
In this internet-driven era, the horizon of obtaining evidence illegally has broadened, with many parties seeking to adduce such evidence. This issue gains more significance in the pandemic-hit world, where virtual arbitrations are on the rise and so are the risks of cyberspace. With the recent amendment of Article 9.3 of International Bar Association (IBA) Rules on Taking of Evidence in International Arbitration 2020, there has been a rekindling of concerns related to the admissibility of unlawfully obtained evidence in international arbitration. Though the issues surrounding unlawfully obtained evidence in arbitration have been raised earlier, this marks the first time that it has been incorporated within widely accepted international arbitration rules. Since the IBA Rules themselves do not lay down the criteria for exclusion of such evidence, it becomes necessary to evaluate the extent to which the illegally obtained evidence could be admissible, alongside key concerns arising from it.
This paper addresses the concerns surrounding this premise and attempts to resolve the dilemma faced in the exercise of the tribunal‘s discretionary power to balance the flexibility of the arbitration process on one hand, and the need to ensure a fair trial on the other. At the outset, it lays down the core principles of evidence in international arbitration and the consequent impact of the IBA 2020 Amendment. The approaches of various tribunals to this issue have been dissected to understand the key factors influencing the admission/exclusion of such evidence. Lastly, the paper attempts to lay down a harmonious standard for evaluating unlawfully obtained evidence, which could find practical application in contemporary times.