Flavia Caron*
Abstract
It
is now certain from the 2021 version of the IBA Rules on the Taking of
Evidence, that unlawfully obtained evidence is admissible[1].
Arbitral tribunals possess a broad discretion in this regard. However, the
reasoning that tribunals need to follow is not clear. This is particularly the
case regarding evidence obtained through hacking. This article will thus
examine the extent to which such evidence is admissible.
I.
INTRODUCTION
When considering whether evidence obtained
unlawfully needs to be admitted, arbitral tribunals need to analyze different
criteria. It emerges from investment arbitration awards that the role played by
the party trying to have the evidence admitted is an important element for the
tribunal to take into consideration. This view relies on what is called the “clean
hands doctrine”, or “unclean hands doctrine”. The meaning of this
doctrine is that if the party seeking to admit unlawfully obtained evidence
played no part in obtaining it, and therefore has “clean hands”, then the
illegality of the evidence cannot be held against it[2].
Hence, for illegally obtained evidence to have
more chances of being deemed admissible, it must come from a disinterested
third party. The latter has been defined by the International Court of Justice as
people: “who are not parties to the dispute and have nothing to gain or lose
from it”[3]. The
traditional concept of a disinterested third party would be that of a stranger
dropping off a parcel outside the house of the arbitrator, or a mysterious
anonymous phone call. However, this approach is outdated. Nowadays, the
disinterested third party is often replaced by a computer.
Indeed, the increasing use of new technologies
has amplified the number of hackings, resulting in the adoption of a new mantra
for those working in cyber security: “It's when, not if”[4].
The publication of 250,000 confidential diplomatic cables from 274 embassies,
consulates and diplomatic missions by Wikileaks has particularly affected the
field of international arbitration. Arbitral tribunals have indeed been
confronted with parties attempting to have these cables admitted or even simply
relied upon, even though they have been obtained illegally.
It appears from national judgements, as well as
arbitral awards, that evidence obtained through hacking is usually admitted, thus
it can be considered that there is a principle of admissibility (I).
This principle, however, has limits (II).
(A) The principle of admissibility
Most national courts and arbitral tribunals
have admitted evidence obtained through computer hacking, on the basis of the
clean hands doctrine. More precisely, they have considered that the leaked
documents belonged henceforth to the “public domain”[5].
National courts are the first to
have applied this method. In the Spycatcher case, even though it does not
concern a hacking incident, the court considered that “it is perfectly
obvious and elementary that, once information is freely available to the
general public, it is nonsensical to talk about preventing its ‘disclosure’”[6].
Other courts have rightly said that “keeping a document confidential in the
public domain” would be “absurd”[7].
Arbitral tribunals have followed this same line
of reasoning. An example of this is illustrated in Caratube v. Kazakstan[8].
In this 2012 case, the Kazakhstan government's computer network was hacked. As
a result, 60,000 documents from the hacking were published on a website called “Kazakhleaks”,
which was accessible to everyone. The investor, who was not involved in the
hacking, sought to have 11 of these documents admitted into the arbitration
proceedings. Kazakhstan, of course, objected. The arbitral tribunal finally decided
to admit the documents requested by the claimant. Although mindful of the need
to protect Kazakhstan from cybercrime, the tribunal deemed more important that
it be given access to relevant information already disclosed to the public.
This view was also shared in ConocoPhilipps
v. Venezuela, by a dissenting arbitrator[9].
The latter has indeed considered that ignoring the Wikileaks cables would constitute
“a travesty of justice” and would lead the tribunal to shut itself off “by
an epistemic closure into a subjective make-believe world of its creation”[10].
Moreover, in the Yukos cases, even though
the tribunal did not rule on their admissibility, it relied on the Wikileaks
cables to make its decision[11].
This shows that it implicitly considered them to be admissible.
Therefore, there is a clear willingness from
tribunals to admit evidence obtained through hacking. However, some limits have
been established.
(B) The limits to the principle of
admissibility
Evidence obtained through hacking has not systematically
been admitted by tribunals. It is indeed considered that other factors supersede
the clean hands doctrine.
First, evidence covered by a legal privilege
cannot be deemed admissible, despite the good faith of the parties. This is
what was decided in the Caratube v. Kazakhstan case. The tribunal excluded
4 out of 7 documents, because they were covered by attorney-client privilege. It
is considered by some that “[a]n effective legal system requires that
confidentiality between client and attorney be protected”[12].
Without such protection, clients would be afraid to confide in their
lawyers, and the latter would not be able to advise or represent them properly.
The Singapore Court of Appeal also concluded in a judgment that “the balance
between the competing imperatives of truth and privilege is [...] struck
in favor of the latter”[13].
Therefore, legal privileges are so important that evidence covered by this type
of protection becomes inadmissible prima facie.
Second, the authenticity of evidence obtained
through computer hacking can easily be challenged. In her article, Jessica
Ireton invokes the hypothesis that, in a future arbitration, two parties
present the same Wikileaks cable, but both contain slightly different texts[14].
The difficulty lies in the fact that the party seeking to have the evidence
admitted does not possess the original. Could the tribunal then turn to a third
party to establish the authenticity of the evidence? In the case of Wikileaks,
this would be the US government. Such a request was made by a company to the local
government in ConocoPhillips v. Bolivarian Republic of Venezuela[15].
The State refused to produce the original, arguing that it was government
information, covered by legal protection and of “sacrosanct” nature[16].
This position would evidently be shared by the United States, if a party were
to make the same request. Therefore, the admissibility of evidence obtained
through hacking is “fragile”. As soon as a party challenges it, its
authenticity would be put into question and it would most likely not be
admitted, for lack of proof.
II.
CONCLUSION
The
role played by the party trying to have evidence obtained through hacking
admitted, helps the tribunal to decide whether said evidence should be
admissible or inadmissible.
*Paris Nanterre University, flavia.caron@gmail.com
[1] Article 9.3 of the
IBA Rules on the Taking of Evidence, 2021.
[2] Jain N., Can an
Arbitral Tribunal Admit Evidence Obtained through a Cyber-Attack?, Kluwer
Arbitration Blog, 27 January 2019,
<http://arbitrationblog.kluwerarbitration.com/2019/01/27/can-an-arbitral-tribunal-admit-
evidence-obtained-through-a-cyber-attack/> (accessed on 5 July 2021).
[3] Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Merits) [1986] ICJ
Rep 392, §69.
[4] Ries G., 2017
Security, TechReport 2017, Amercian Bar Association, 1 December 2017,
<https://www.americanbar.org/groups/law_practice/publications/techreport/2017/security.html>
(accessed on 18 July 2021); E. Sussman, “Cyber intrusion as the Guerilla
Tactic: An Appraisal of Historical Challenges in an Age of Technology and Big
Data”, in Jean Engelmayer Kalicki and Mohamed Abdel Raouf (eds.), Evolution
and Adaptation: The Future of International Arbitration, ICCA Congress
Series No. 20, Kluwer Law International, 2019, pp. 849-868.
[5] Caratube
International Oil Company LLP and Devincci Salah Hourani v. Kazakhstan, ICSID, ARB/13/13,
Award, 27 September 2017; Bryana Bible v. United Student Aid Funds, Inc.,
No. 14-1806 (7th Cir. 2015); Attorney-General v.
Guardian Newspapers Ltd. [1987]
1 W.L.R. 1248; Chagos Marine Protected Area Arbitration (The Republic of
Mauritius v. United Kingdom), PCA, No 2011-03, Award, 18 March 2015.
[6] Attorney-General v.
Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, p. 2.
[7] McCorquodale R., Wikileaks
Documents are Admissible in a Domestic Court, EJIL: Talk!, Blog of the
European Journal of International Law, 21 February 2018,
<https://www.ejiltalk.org/wikileaks-documents-are-admissible-in-
a-domestic-court/comment-page-1/> (accessed on 15 June 2021).
[8] Caratube International
Oil Company LLP and Devincci Salah Houranic v. Kazakhstan, ICSID, ARB/13/13,
Award, 27 September 2017, §§150 - 156.
[9] ConocoPhillips
Petrozuata B.V., ConocoPhillips Hamaca B.V. and ConocoPhillips Gulf of Paria
B.V. v. Bolivarian Republic of Venezuela, ICSID, ARB/07/30, Dissenting
Opinion of Georges Abi-Saab, 10 March 2014.
[10] Ibid, §67.
[11] Hulley Enterprises
Ltd v. Russia, PCA, AA 226, Award, 18 July 2014; Yukos Universal Ltd v. Russia,
PCA, AA 227, Award, 18 July 2014; Veteran Petroleum Ltd v. Russia, PCA,
AA 228, Award, 18 July 2014.
[12] Meyer-Hauser B. F.
et Sieber P., “Attorney Secrecy v Attorney–Client Privilege in International
Commercial Arbitration”, in Michael O’Reilly (ed.), Arbitration: The
International Journal of Arbitration, Mediation and Dispute Management,
Chartered Institute of Arbitrators, Kluwer Law International, Vol. 73, No. 2,
p.149.
[13] HT SRL v. Wee Shuo
Woon
[2016] SGHC 15, §60.
[14] Ireton J., The
Admissibility of Evidence in ICSID Arbitration: Considering the Validity of
WikiLeaks Cables as Evidence, in Meg Kinnear and Campbell McLachlan (eds.),
ICSID Review - Foreign Investment Law Journal, Vol. 30, No. 1, 2015, p. 241.
[15] ConocoPhillips
Petrozuata B.V., ConocoPhillips Hamaca B.V. and ConocoPhillips Gulf of Paria
B.V. v. Bolivarian Republic of Venezuela, ICSID, ARB/07/30, Decision
on Respondent’s Request for Reconsideration, 10 March 2014.
[16] ConocoPhillips
Petrozuata B.V., ConocoPhillips Hamaca B.V. and ConocoPhillips Gulf of Paria
B.V. v. Bolivarian Republic of Venezuela, ICSID, ARB/07/30, Dissenting
Opinion of Georges Abi-Saab, 10 March 2014, §21.
[17] Kubalczyk A., Evidentiary
Rules in International Arbitration: A Comparative Analysis of Approaches and
the Need for Regulation, Groningen Journal of International Law, Vol. 3,
No. 1, 2015.
[18] Kofman M., “Report
of the Rapporteur for the ‘Hot Topics Panel’”, in Jean
Engelmayer Kalicki and Mohamed Abdel Raouf (eds.), Evolution and
Adaptation: The Future of International Arbitration, ICCA Congress Series
No. 20, Kluwer Law International, 2019, p. 878.
Image: VPNoverview.com
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