International Investment Arbitration and Inappropriately Obtained Evidence

1. Introduction

2. Key Concepts and Contexts

3. Tribunal Duties and Inappropriately Obtained Evidence

4. Current and Future Trends in the Exclusion of Inappropriately Obtained Evidence

5. Domestic Laws and The Practice of International Courts and Tribunals

6. The Evidentiary Test for the Treatment of Inappropriately Obtained Evidence

7. Conclusion and Outlook

Biography

Aleksander Godhe PhD (KCL) LLM (LSE) LLB (Nottingham) is the Michael Brown Lecturer (Assistant Professor) at the Centre of Construction Law & Dispute Resolution at The Dickson Poon School of Law, King’s College London and a Visiting Fellow at the Stockholm Centre for Commercial Law, Stockholm University. His specialism is in dispute resolution, construction law and international economic law. Aleksander also acts as an Independent Consultant in dispute resolution and is the Co-Chair of the International Bar Association Task Force on Contractual Adjudication and Deputy Committee Editor of the Construction Law International journal. He is also a Fellow of the Chartered Institute of Arbitrators (FCIArb).

Dr. Aleksander Godhe has produced a thorough, sophisticated and nuanced analysis of the evidentiary use of improperly obtained evidence in international arbitration. He meticulously examines past practice in ISDS cases and highlights a serious lack of consistency in approach in that jurisprudence. He cogently argues for a nuanced approach that considers a range of factors he has identified as desirable determinants of whether such evidence should be admitted and relied upon. He also outlines other optional responses, such as reduced weight, limited use and ethical sanctions. His suggestions should be considered by anyone interested in the field of evidence in arbitration and are likely to be highly influential in future adjudications. His suggested factors make for a worthy and well-argued hybrid model that retains the possibility of nuance, but encourages a policy based consistency in responses. I commend the book to anyone interested in this serious and growing issue.

Professor Jeff Waincymer, Adjunct Professor NUS School of Law, Independent Arbitrator

 

This is a thoughtful and comprehensive discussion of improperly obtained evidence in investment arbitration. The book brings discipline and clear thinking in a field where decisions on key evidentiary matters on which the outcome of the case may depend are often taken in an unstructured and unpredictable way. Dr Godhe’s insights and thorough review of the law and practice in the area are going to be of great use to scholars and practitioners alike. I unreservedly recommend this book to anyone interested in investment arbitration.    

Professor Renato Nazzini KC (Hon), King’s College London, Monckton Chambers

 

Most arbitrations are won on the facts rather than solely on legal arguments. Determining which facts must be proven—and proving them using improperly obtained evidence—presents particular difficulties. Aleksander Godhe’s book addresses this complexity in a methodical way, beginning with key concepts and applicable rules, and moving to the specific duties of tribunals and an analysis of empirical evidence from relevant cases. It concludes by proposing a comprehensive evidentiary framework for tribunals and parties to handle improperly obtained evidence in ISDS. This book deserves a place in the library of every practitioner and scholar engaged with evidentiary issues in investment arbitration.

Professor Yarik Kryvoi, Director of Investment Treaty Forum, British Institute of International and Comparative Law; Co-director of Arbitration Lab