Part V Safeguarding the Process, 11 Exclusionary Rules of Evidence

Subject(s):

Privilege — Public policy — Arbitrators — Confidentiality — Evidence

This chapter outlines the exclusionary rules of evidence. In the context of investor-state arbitration proceedings, all evidence proffered by the parties is admitted into the record in the absence of exceptional circumstances. A party seeking to exclude evidence typically carries the burden to convince the tribunal that it should exclude the evidence in question. In seeking to do so, it will have to meet a reasonably high standard of proof. Consequently, exclusion of evidence is warranted only in the limited circumstances when its inclusion would violate another party’s right to be heard, the equality of the parties, or fundamental principles of international public policy. Given the exceptional nature of excluding relevant and material evidence in international arbitration, the burden is on the party seeking to exclude evidence. The exceptional nature of these limitations indicates the premium placed by international arbitration on the free evaluation of evidence by the arbitrators.