Arbitration Links - Linklaters
  • Topic: Evidence

How to Prove Corruption – Notes from a panel discussion at the BIICL 28th Investment Treaty Forum

21 June 2017 Jessie Ingle

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On 12 May 2017, the British Institute of International and Comparative Law held its 28th Investment Treaty Forum with this year’s theme being ‘Economic Crime and International Investment Law’.

One particularly relevant panel discussion at the interface between the resolution of investment treaty disputes and the wider themes of the forum focused on ‘Evidentiary Challenges of Allegations of Economic Crimes in Investor-State Disputes’

In a sweeping majority of cases, the party alleging corruption is unable to substantiate that claim before the arbitral tribunal. The panellists explored the question of how arbitral tribunals in investment treaty disputes can best deal with allegations of corruption when a) such a crime typically involves very little evidence; b) that evidence that has been concealed; and c) the tribunal has no way of compelling the production of that evidence.

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The High Court rules on the English court's powers in support of arbitral proceedings against non-signatories

12 April 2017 Joanne Finnegan, England & Wales; Europe

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The English court’s powers in support of arbitral proceedings in section 44 of the Arbitration Act 1996 are not exercisable against non-parties to an arbitration

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“Adverse inference” doctrine endorsed by the Paris Appeal Court

11 April 2017 Johanne Brocas, Europe; France

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In a decision of 28 February 2017, the Paris Appeal Court held that the IBA Rules on the Taking of Evidence in International Arbitration 2010 (the IBA Rules of Evidence) were applicable as long as the rules were agreed upon by the parties in the Procedural Order n°1.  Further, the court ruled that the tribunal was entitled to apply the adverse inference doctrine provided at Article 9(5) of the IBA Rules of Evidence.

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Southern District grants Section 1782 discovery for private commercial arbitration

23 January 2017 Patrick Ashby, North America; United States of America

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Private international arbitral bodies are considered foreign tribunals for the purpose of 28 U.S.C. §1782 (“Section 1782”), the United States statute that allows parties to obtain evidence in the U.S. for use in legal proceedings outside of the U.S., according to a recent decision by Judge Furman of the District Court for the Southern District of New York (“Southern District”).

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