Publications

Start of main content

Conference by Íñigo Rodriguez-Sastre in the Club Español del Arbitraje

| Publications | Litigation

Presentation on the admission of evidence obtained in an allegedly unlawful manner in the framework of a conference organised by the Club Español del Arbitraje.

24 April 2017.- Íñigo Rodríguez-Sastre, the partner heading the Litigation, Arbitration and Bankruptcy department of Andersen Tax & Legal in Madrid and Valencia, gave a presentation on the admission of evidence obtained in an allegedly unlawful manner in the framework of a conference organised by the Club Español del Arbitraje.

During his presentation, Rodríguez-Sastre explained who has the burden of proof in international arbitration and the limits to the production of documentary evidence, a point in which he referred to the principles of due process, good faith and respect for the applicable rule in obtaining the evidence.

In particular, he indicated that unlawfully obtained evidence is generally evidence obtained by breaching a rule, because it would place one party at a disadvantage with regard to the other. He specified that the paradigm is evidence obtained in violation of fundamental rights (by interception of communications) or by the use of force. He went on to say that for the purposes of the admission of evidence, it is necessary to bear in mind the law chosen by the parties to decide on the merits of the case as well as that applicable in the place of arbitration to determine the existence of any breach of a fundamental right or unlawful activity.

The partner of Andersen Tax & Legal also referred to challenges made to the admission of unlawful evidence and held that the principle of good faith prevails, that the allegation of inadmissibility should be made as soon as possible, under penalty of a waiver of rights, and that the arbitrators will have the authority to decide on the admissibility of evidentiary material challenged as unlawful.

Lastly, Íñigo Rodríguez-Sastre analysed the Methanex case, whose ruling, handed down in 2005, established that the principle of equality of arms prevents the admission of unlawful evidence and that such evidence will not be admitted even if there is no intention to breach a right, an argument presented in numerous subsequent rulings, to which he added that confidentiality undertakings are not grounds to support the argument of inadmissibility, as demonstrated in the decision of the arbitration tribunal that ruled on the Enron vs. Argentina case (ICSID ARB 01/03).

The presentation given by Rodríguez-Sastre forms part of the firm’s determined promotion of its arbitration practice, with Andersen Tax & Legal participating as platinum sponsors in the forthcoming Arbitration Open that will be held on 11 May in Madrid, where Iñigo Rodríguez-Sastre and Elena Sevila will participate as speaker and moderator of a table, respectively.

End of main content