International arbitration: striking a balance

• Illegally obtained evidence.
• The position in the English jurisdiction.
• The position in international arbitration.

Arbitral tribunals enjoy broad discretion regarding admissibility of illegally obtained evidence and recent revisions to the IBA’s rules reflect this. While there is no definitive answer as to when such evidence will be excluded, comparing the approach in English litigation with that of international arbitration reveals circumstances where such exclusion may occur under the new revisions.

Illegally obtained evidence

The IBA Rules on the Taking of Evidence in International Arbitration are widely used in international arbitration. On 17 February 2021, amendments to these rules entered into force.

The amendments include the introduction of Art 9.3 which states that a tribunal ‘may, at the request of a Party or on its own motion, exclude evidence obtained illegally’. Thus, the 2020 Rules expressly provide a power to exclude such evidence, whereas