Recents in Beach

header ads

Hacking in international arbitration: the admissibility of unlawfully obtained evidence


Flavia Caron*





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 However, this approach is outdated.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.

 An analysis of decisions and awards rendered by national judges and arbitrators reveals that tribunals tend to admit unlawfully obtained evidence, especially when it is issued from Wikileaks, on the account that it is already available to the public. In fact, tribunals tend to rarely consider evidence inadmissible in general, despite their broad discretion. This is mainly because tribunals prefer to avoid being accused of failing to follow due process by preventing a party from presenting its case[17].

 However, admitting this type of evidence should not be automatic. Doing so could encourage parties to resort to malicious maneuvers. Also, certain criteria outweigh the good faith demonstrated by the parties, and cause the evidence to be inadmissible prima facie. This is the case for evidence covered by a legal privilege, or inauthentic. It is therefore important for arbitrators to not only behave as “watchdogs”, by merely applying and respecting the decisions of the parties, but also as “bloodhounds”, by being proactive and sometimes going against the wishes of the parties, when necessary[18].


*Paris Nanterre University,

[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, < 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, <> (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, < 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.


Publicar un comentario

0 Comentarios