Admissibility of Unlawfully Obtained Evidence in International Arbitration in Switzerland

Abstract

When facing possibly unlawfully obtained evidence, how is the arbitral tribunal meant to react and decide on the issue, what are the applicable principles (if any), what is the standard of proof and how the adduced evidence should be dealt with? These are some of the issues covered in this contribution.

The author submits that, as far as international commercial arbitration in Switzerland is concerned, there are some principles which can be identified in international precedents and used to outline a rational method to address the issue.

The paper starts with an overview of the rules governing the taking of evidence in international arbitration, then moves on to a review of the (few) published international decisions and awards on the issue and covers the national procedural principles addressing the admissibility of unlawfully obtained evidence in order to examine if there is some consensus on the applicable rules.

Finally, the author proposes a method to conduct the reasoning when faced with a claim that evidence was unlawfully obtained and examines some remedies available to the arbitral tribunal when it holds that the unlawfully obtained evidence is inadmissible.

Keywords: International; arbitration; illicit; unlawful; unlawfully; illicitly; illegally; illegal; obtained; adduced; evidence; proof; fraud; procedure; Switzerland; PILA; Swiss; legal; law