THE SEARCH FOR THE TRUTH versus PROCEDURAL FAIRNESS: THE ADMISSIBILITY OF UNLAWFULLY OBTAINED EVIDENCE IN INTERNATIONAL ARBITRATION

Can unlawfully obtained evidence be considered admissible by international commercial arbitration tribunals? How do the source of a document, the legitimacy of procedural fairness and the right to its admissibility interact as pieces of the puzzle for the search for the truth? When the parties autonomy is the only correct answer, how do the boundaries of an autonomous tribunal correlate with limits not yet regulated by international practices? The taking of evidence in international arbitration is a practice that may be regulated by different sets of rules. But how to approach real concerns before the rules? The purpose of this dissertation is to answer these questions through a study of principles, precedents and procedural rules that govern international commercial arbitration. In the narratives of legal doctrine, due administration of justice has often been associated and balanced between elicitation of the truth and the burden of proof. It is undisputed that international commercial arbitration enjoys a greater freedom in terms of procedural structure than national courts do. However, it is precisely such procedural flexibility that raises modern concerns that have been already settled in judicial disputes. One of these critical hotspots is the concern towards the admissibility of unlawfully obtained documents. The grounds of admissibility of evidence obtained through unlawful means or sources will be hereinafter addressed through a diagnostic analysis. The main idea is to construct an equation under the premise that, although this concern may be presented as a new paradigm, the fundamental basis of this answer has already been written but not yet gathered as a simple formula. Based on the study of specialized doctrine and arbitral and judicial precedents, a timeline of arbitration's cornerstones, beginning in ancient Greece and developing through modern centuries, will be traced. The goal of this timeline is to identify the principles that have been abandoned and incorporated in the rules and practices perceived in the last decade. . There is, however, no ambition to engage in a critical analysis of these principles, but rather to conduct a qualitative one. Thereafter, the discretion of the arbitral tribunal to assess and admit or exclude evidence will be examined in light of the principles gathered from this timeline. Next, the search for the truth one of the duties and consequences of the role played by arbitrators will be critically investigated. Afterwards, the concepts and definitions of unlawfully obtained evidence will be addressed, extending the concept of this term to its applicability in practice. This discussion will be focused on the difference, if there is any, between unlawful, illegal and illegitimate evidence, and how those labels are applied. In conclusion, the admissibility of evidence considered to be problematic in the previous chapter will be addressed on the basis of a principality equation, balancing the common grounds of due process against arbitration's particularities. The aim is not to provide a final and definitive answer, but rather guidance in the form of greater clarity.