The issue of admissibility of evidence in the investment arbitration: should the tribunal use hacked and illegal documentation?

Department of Law Spring Term 2019

Master Programme in Investment Treaty Arbitration Master’s Thesis 15 ECTS

The issue of admissibility of evidence in the investment arbitration

Should the tribunal use hacked and illegal documentation?

Author: Dmytro Drahanov

Supervisor: Joel Dahlquist

2

List of abbreviations

ECHR European Court of Human Rights

ECT Energy Charter Treaty

EU European Union

IBA International Bar Association

ICJ International Court of Justice

ICSID International Centre for Settlement of

Investment Disputes

ISO International Organization for

Standardization

LCIA London Court of International

Arbitration

NAFTA North American Free Trade Agreement

SCC Stockholm Chamber of Commerce

UNCITRAL United Nations Commission on

International Trade Law

US United States

3

Table of cases

Caratube International Oil Company LLP and Mr. Devincci Salah Hourani v Republic of Kazakhstan, ICSID Case No. ARB/13/13, Award, 27 September 2017 ConocoPhillips Petrozuata B.V., ConocoPhillips Hamaca B.V. and ConocoPhillips Gulf of Paria B.V. v Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/30, Decision on Jurisdiction and Merits, 3 September 2013 ConocoPhillips Petrozuata B.V., ConocoPhillips Hamaca B.V. and ConocoPhillips Gulf of Paria B.V. v Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/30, Decision on the Respondent's Request for Reconsideration, 9 Feb 2016

ConocoPhillips Petrozuata B.V., ConocoPhillips Hamaca B.V. and ConocoPhillips Gulf of Paria B.V. v Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/30, Respondent Application for Reconsideration of Decision, 10 August 2015

EDF (Services) Limited v Romania, ICSID Case No. ARB/05/13, Procedural Order №3, 29 August 2008

Gambrinus Corporation v The Bolivarian Republic of Venezuela, ICSID Case No.

ARB/11/31, Award, 15 June 2015

Kılıç İnşaat İthalat İhracat Sanayi ve Ticaret Anonim Şirketi v Turkmenistan, ICSID Case No. ARB/10/1, Award, 2 July 2013

Lao Holdings N.V. v The Lao People’s Democratic Republic, ICSID Case No.

ARB(AF)/12/6, Procedural Order No.11, 25 June 2018

Libananco Holdings Co. Limited v Republic of Turkey, ICSID Case No.

ARB/06/8, Decision on Preliminary Issues, 23 June 2008

Methanex Corporation v United States of America, UNCITRAL, Final Award of the Tribunal on Jurisdiction and Merits, 3 August 2005

Methanex Corporation v United States of America, UNCITRAL, Motion of Respondent to Exclude Certain of Methanex’s Evidence, 18 May 2004

OPIC Karimum Corporation v The Bolivarian Republic of Venezuela, ICSID

Case No. ARB/10/14, Decision on the Proposal to Disqualify Professor Philippe

Sands, Arbitrator, 5 May 2011

4

Yukos Universal Limited (Isle of Man) v The Russian Federation, UNCITRAL, PCA Case No. AA 227, Final Award, 18 July 2014

Table of legislation

International treaties

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted and opened for signature 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (United Nations Convention against Torture)

National legislation

Arbitration Act 1996 (UK)

Civil Procedure Code 2008 (Cudesch da procedura civila svizzer) (SWI) Code of Judicial Procedure 1998 (Rättegångsbalk) (SWE)

Federal Arbitration Act 1926 (USA)

Arbitration rules

ICSID Arbitration Rules 2006 LCIA Arbitration Rules 2014 SCC Arbitration Rules 2017

UNCITRAL Arbitration Rules 2010

Soft law

IBA Rules on the Taking of Evidence in International Arbitration 2010

Rules on the Efficient Conduct of Proceedings in International Arbitration (Prague Rules) 2018 (final draft version)

UNCITRAL Model Law on International Commercial Arbitration 1985 (with

amendments as adopted in 2006)

5

Table of Contents

1. Introduction ... 6

1.1. Research questions ... 7

1.2. Delimitation and sources ... 7

1.3. Description of the terminology, used in the thesis ... 8

1.4. Outline ... 9

2. Categorisation of illegally obtained evidence in the international arbitration . 9 3. Legal framework of admissibility and evaluation of evidence in investment treaty arbitration... 13

3.1. National arbitration laws ... 14

3.1.1 Sweden ... 14

3.1.2. Switzerland ... 16

3.1.3. United States ... 18

3.1.4. England and Wales ... 19

3.2. Arbitration rules ... 20

3.3. International soft law ... 21

3.3.1 IBA Rules ... 21

3.3.2 Prague Rules 2018 (final draft version) ... 22

3.4 Interim concluding remarks ... 23

4. Practice in case law ... 24

4.1. Rejection of illegally obtained evidence in the jurisprudence ... 24

4.2. Caratube v Kazakhstan as the example of liberal approach in relation to evidence ... 29

4.3. Yukos v Russia and other cases with reference to WikiLeaks as the source of evidence ... 31

4.4. Main approaches used by the tribunals ... 34

5. Conclusion ... 35

6. Bibliography ... 39

6

1. Introduction

All the times evidentiary issues are one of the most disputable and important for the dispute resolution, regardless of the type of resolution or the time of a dispute.

The matters, related to acceptance and evaluation of evidence are also definitely very important for the parties in the international arbitration, where the arbitrators often do not have clear ground to rely on the national rules and must work together with international legal order, legal principles and national rules, what gives more discretion for the tribunals. As Professor W. Michael Reisman said,

‘[a] suit cannot be pressed, whether on the domestic or international level, without supporting evidence.’

Keeping this in the mind, the counsels of both parties do the most of job to persuade the arbitrators to accept their evidence, even if their facts or documents are obtained in a not legal and lawful way. Nowadays, when the number of investment treaty arbitration disputes increased sharply in the last years worldwide, it is especially important to understand new challenges before the arbitrators and to react to them adequately.

Despite its roots in the international disputes and domestic litigation, the question of illegally obtained evidence still remains controversial and open to discussion, as currently, the arbitrators can render the completely opposite decisions on the question of admission of evidence, even if the tribunals base their judgments on the same legal principles and provisions. Thus, there is no well-established and widely accepted position among the arbitrators on how to solve the issue of illegally obtained evidence. Indeed, the last years the scholars start to put more attention on this sensitive issue and, as for example and confirmation, the admissibility of illegal evidence is a legal problem at the 26

Annual Willem C.

Vis International Commercial Arbitration Moot competition. So at least, the international arbitral community did the first step to solve the problem – it started to recognise it.

1 W Michael Reisman and Eric E Freedman, ‘The Plaintiff’s Dilemma: Illegally Obtained Evidence and Admissibility in International Adjudication’ (1982) 76 The American Journal of International Law 737.

7

This problem remains actual not only for the arbitral community but for their clients too, what is shown by the surveys with different respondents. The latest survey, held by Bryan Cave Leighton Paisner in 2019 and which asked arbitrators, counsels, academics, employees of arbitral institutions and expert witnesses, shows 90% of interviewed thought that cybersecurity is an important issue in international arbitration. Every ninth respondent indicated about the sad experience of a data breach during arbitration proceedings.

This statistic confirms that the cybersecurity in particular and possible illegally obtained evidence, in general, remain the important issues for the professionals, involved in the international arbitration proceedings. Although, there is still no full and comprehensive source about the illegally obtained evidence in the international arbitration, which would open and describe the nature of this phenomenon, so the issues still remain unanswered.

1.1. Research questions

The description and research on the problem of illegally obtained evidence may help to see the situation in whole and should help to clarify the distinction between admissible and non-admissible evidence. This thesis aims to try to give an answer to the following issues:

1. Is the illegally obtained evidence admissible in investment treaty arbitration disputes?

2. If it is admissible, under which conditions parties can present such admission in the purpose of persuasion of the tribunal?

3. What are the types of illegally obtained evidence in investment treaty arbitration?

1.2. Delimitation and sources

Due to study limitations and general scope of this thesis, there is no research in relation to international criminal case law, international commercial arbitration

2 Bryan Cave Leighton Paisner, International Arbitration Survey: Cybersecurity in International Arbitration,

<https://www.bclplaw.com/images/content/1/6/v2/160089/Bryan-Cave-Leighton-Paisner- Arbitration-Survey-Report-2018.pdf> accessed 20 May 2019.

8

and sports arbitration, where the illegally obtained evidence was presented in the cases too. There is no room for the consideration of other international tribunals, starting from the 1940-s, for example, the International Court of Justice, Special Tribunal for Lebanon or European Court for Human Rights. Although, as the judgments of these tribunals put fundament of international disputes resolution, some of the tribunals feel the importance of relying on the decisions, if there was an issue related to evidence. For example, one of the cited cases EDF v Romania is based on the ICJ judgment in the Corfu Channel case and two (P.G. and J.H. v United Kingdom and Shenk v Switzerland) ECHR cases;

so therefore, there are already examples of implication of the previous tribunals’ judgments in the investment treaty arbitration awards.

1.3. Description of the terminology, used in the thesis

For the purpose of this thesis, it is a good idea to deal with the definitions, related to the designated topic. First of all, it is important to limit the term ‘illegally obtained evidence’. A Dictionary of law by Oxford defines the term of illegally obtained evidence as evidence obtained by some means contrary to law.

At common law, if evidence was obtained illegally (e.g. where there had been a search of premises without a search warrant), that evidence was not inadmissible as a matter of law, but the court might exclude it as a matter of discretion where its prejudicial effect outweighed its probative value.

The terms ‘unlawfully obtained evidence’, ‘unfairly obtained evidence’, ‘illicitly obtained evidence’ and

‘improperly obtained evidence’ are simultaneously used with the term ‘illegally obtained evidence’ as a synonym, and therefore, describes the same deviance in the arbitration.

It is also necessary to define the term ‘data breach’, which is one of the most frequent examples of illegally obtained evidence. As there is no common definition for this phenomenon yet, there is explanation, given by the International

3 EDF (Services) Limited v Romania, ICSID Case No. ARB/05/13, Procedural Order No 3, 29 August 2008, para 37.

4 Jonathan Law (ed), A Dictionary for Law (8th edn, Oxford University Press 2015)

<https://www.oxfordreference.com/abstract/10.1093/acref/9780199664924.001.0001/acref- 9780199664924-e-1432?rskey=2CTLiz&result=1> accessed 26 May 2019.

5 ibid.

9

Organization for Standardization (ISO), which covers the most possible types of breaches and it defines ‘data breach’ as a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed. Thus, the definition covers most of the used circumstances happened after the breach of security and violation of the privacy of data.

1.4. Outline

The following text is divided by introduction, 3 sections of the main text, and bibliography. In Section 2, the current possible examples of illegally obtained evidence and its categorisation are described. Next section is dedicated to the legal framework on the evidence issues together with several examples on the states’

arbitration laws, international soft law tools and few examples of evidentiary matters in the domestic litigation as an example of the prevalence of the existing problem. Section 4 contains the analysis of practice in case law, dividing the investment treaty arbitration disputes by the leading approaches in regard to the admissibility of evidence. Finally, the concluding section discusses the findings of the previous parts and attempts to answer the questions posed.

2. Categorisation of illegally obtained evidence in the international arbitration

The illegally obtained evidence in the international arbitration is not the single term, but rather a mix of several types of documents, which are obtained unlawfully and are used in the production of documents for the presentation in the disputes.

If saying about the general division of evidence by the types in the arbitration, the evidence presented to arbitral tribunals on disputed issues of fact may be divided into four categories:

6 Nigel Blackaby et al., Redfern and Hunter on International Arbitration (6^th edn, Oxford University Press 2015) para 6.89.

10

1. Production of documents;

2. Testimony of witnesses of fact (written and/or oral);

3. Opinions of expert witnesses (written and/or oral); and

4. Inspection of the subject matter of the dispute (visit of the site).

Due to the nature of illegally obtained evidence, such evidence can be collected only in the first category above, the production of documents, as the testimonies of witnesses and experts’ opinions, are the acts of will from the witnesses and experts, and any unlawfulness of such evidence is excluded. The visit of the site for the same reason cannot be illegally obtained. Therefore, the production of documents can be only one possible source of illegally obtained evidence for the parties.

The types of illegally obtained evidence can be miscellaneous and incalculable as there is no limit of phantasy for the abuse of process and violation of laws.

Moreover, the task becomes much more complicated as the number of investment treaty arbitrations is confidential and there is frequently no comprehensive information about the outcome of the dispute, even not mention to the procedural issues in the case, therefore the research in this field cannot be obviously perfectly entire. Although, there are already some examples, which can be categorised in the groups.

First of all, the large number of illegally obtained evidence contains hacked information, received through data breaches (or ‘data leaks’). The technologies of the last decades have allowed the parties to hack information through electronic devices, data leaks and etc., what seems to be a new threat for many private corporations and state services. The most famous within them is WikiLeaks, which released documents play a role in several investment arbitration disputes.

On 28 November 2010, WikiLeaks published 251 287 leaked US Embassy cables, the largest set of confidential documents ever released into the public domain.

7 Jessica O Ireton, ‘The Admissibility of Evidence in ICSID Arbitration: Considering the Validity of WikiLeaks Cables as Evidence’ (2015) 30 ICSID Review - Foreign Investment Law Journal 238.

11

Other data breaches also play some role, especially in those states, where privacy law is traditionally weak, and the parties do not shun using such doubtful evidence to support their position in the case. Their examples are Offshore Leaks (2013, confidential data on more than 785,000 offshore companies), the Luxemburg Leaks (2014, confidential tax information on over 300 multinational companies), the Swiss Leaks (2015, confidential banking information on over 100,000 entities), and the Paradise Papers (2017, 13.4 million confidential documents on offshore structures involving over 120,000 people and companies).

The second type of illegally obtained evidence is data protected by legal privilege.

It is supportable to define the definition of the term ‘privilege’ for the aims of the thesis. Although, unsurprisingly, there is no clear single definition of attorney- client privilege, so various interpretations exist. For example, in Black’s Law Dictionary attorney-client privilege is defined as ‘the client’s right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney’.

In international arbitration, this term is simultaneously used with the term ‘legal privilege’.

In international arbitration proceedings, the attorney-client privilege can become relevant at several levels and it is typically invoked when a party or third party is requested by another party or the arbitral tribunal to produce documents.

The very substantive rule to note is the privilege of states to withhold politically sensitive documents, which is based on states’ legitimate public interest in preventing certain types of information from being disclosed.

Although neither the ICSID Convention and Arbitration Rules nor the UNCITRAL Rules explicitly provide for this privilege, it has support in the IBA Rule. Article 9.2 (f) of the IBA Rules states that ‘[t]he Arbitral Tribunal shall, at the request of a Party or on its own motion, exclude from evidence or production any Document, statement, oral testimony or inspection for…grounds of special political or institutional

8 Grégoire Bertrou, Sergey Alekhin ‘The Admissibility of Unlawfully Obtained Evidence in International Arbitration: Does the End Justify the Means?’ (2018) 4 Cahiers de l'Arbitrage/Paris Journal of International Arbitration 12.

9 Black’s Law Dictionary (10^th edn, Thomson West 2014) 1391 col 2.

10 Annabelle Möckesch, Attorney-Client Privilege in International Arbitration (Oxford University Press 2017) para 1.10.

11 ibid.

12

sensitivity (including evidence that has been classified as secret by a government or a public international institution) that the Arbitral Tribunal determines to be compelling’.

The third type of illegally obtained evidence is, accordingly to the current jurisprudence, illegal audio and/or video recording, which is gained in violation of privacy laws of one the countries. Another subtype of such evidence is documentation received through trespassing onto the private area and ‘fishing expedition’. Generally, the process of so-called ‘fishing expedition’ is prohibited in the arbitration proceedings, so the documents found in such process are not allowed to be presented in the case. This limitation was described by the tribunal in the Libananco v Turkey case as follows: ‘[t]he Tribunal, like any other arbitral tribunal in a similar position, could not allow its process to be used as the cover for a mere fishing expedition launched in the hope of uncovering material to serve as the foundation for an argument (preliminary or substantive) not yet formally advanced before it’.

According to this thinking, document production cannot act as a basis to seek a range of documents to build a case or to discover unknown facts. Rather, the process of document production in the arbitration is more carefully circumscribed to documents that are known or reasonably known to exist.

There is also important to note, that some kinds of evidence are not acceptable in any field of law, and the international arbitration is not an exception in this case, for example, this documentation may be obtained through tortures,

and the evidence through torture is directly prohibited by Article 15 of the UN Convention against Torture,

so such non-admissibility of such evidence is in its

12 IBA Rules art 9.2 (f).

13 Libananco Holdings Co Ltd v Republic of Turkey, ICSID Case No ARB/06/8, Decision on Preliminary Issues, 23 June 2008.

14 Frédéric Gilles Sourgens, Kabir AN Duggal and Ian A Laird, Evidence in International Investment Arbitration (Oxford University Press 2018) para 9.26.

15 Konstantin Pilkov, ‘Evidence in International Arbitration: Criteria for Admission and

Evaluation’ (2014) 80 (2) Arbitration 150,

https://www.researchgate.net/publication/308405085_Evidence_in_International_Arbitration_Crit eria_for_Admission_and_Evaluation>, accessed 19 May 2019.

16 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted and opened for signature 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (United Nations Convention against Torture) art 15

13

kind the ‘red line’ for the tribunal. Despite it is may be not frequent event in the arbitration, this automatic rejection of testimonies obtained through tortures should stop the states from the possible violation of human rights law.

Next section is dedicated to general legal framework about the admissibility of evidence in four selected countries in judicial systems in general, and in the international arbitration in particular and additionally to the evidence provisions in the arbitration rules and ‘soft laws’.

3. Legal framework of admissibility and evaluation of evidence in investment treaty arbitration

Traditionally, in international arbitration, parties are expected to produce the evidence on which they rely to make their case (or defence).

Although, many arbitration rules provide little additional guidance as to matters of evidence, except to accord the tribunal broad discretion to address evidentiary questions as they arise.

As the national arbitration laws might be not comprehensively expansive in relation to the evidentiary matters, the broad discretion given to arbitrators is the most common way for the national legislators to attempt and to solve the evidentiary issues.

In practice, the tribunals determine what evidence to admit based on whatever rules are applicable to the arbitration involved and are likely to be more liberal in admitting evidence than a national court would be. The corollary is that arbitrators have the right and the duty freely to evaluate evidence.

The absence of national rules of evidence also means that some conduct which is customary, or even obligatory, under some national systems has no place in international arbitration.

17 Jeffery Commission and Rahim Moloo, Procedural Issues in International Investment Arbitration (Oxford University Press 2018) para 7.01.

18 ibid.

19 Kaj Hobér and Howard S Sussman, Cross-Examination in International Arbitration: Nine Basic Principles (Oxford University Press 2014) para 4.07.

20 ibid para 4.08.

14

This section will provide the analysis and comparative overview of concepts of the admissibility of evidence in several national arbitration laws (Sweden, Switzerland, United States, and England and Wales), arbitration rules of several institutions and ad hoc tribunals (ICSID, SCC, LCIA and UNCITRAL) and international tools of ‘soft law’, in relation to admission of evidence in international arbitration. The set of four countries, chosen for the analysis in the thesis, invokes to show the existing evidence rules from the different groups of legal systems (German civil law, Scandinavian civil law and Anglo-American common law), as the legal infrastructure of the international arbitration is based and built on the provisions and traditions of many legal systems. Therefore, it is important to show the legal provisions about evidence from both sides of civil and common law systems.

3.1. National arbitration laws

3.1.1 Sweden

In Swedish litigation, there is, at a starting point, no distinction between illegally obtained evidence and illegal evidence.

Analysing Swedish law of evidence, for example, Swedish law of judicial procedure, Chapter 35 Section 1 second paragraph of the Code states that ‘as to the effect of certain kinds of evidence, the specific provisions thereon shall govern’.

This statement opens up for an impact of, for example, legal instruments of the EU, regarding these questions.

Another example is Chapter 35 Section 7, where is confirmed that the evidence is

21 The stated countries do not use UNCITRAL Model Law and implemented the own texts of national arbitration laws, albeit frequently with very adjacent wording in the texts. Taking into consideration the popularity and reputation of UNCITRAL Model Law, it is discussed below in Section 3.3.

22 Vesna Rijavec and Tomaž Keresteš, ‘Restrictions On The Admissibility Of Evidence’ in Remco van Rhee, Alan Uzelac and Maastrichts Europees Instituut voor Transnationaal Rechtswetenschappelijk Onderzoek (eds), Evidence in Contemporary Civil Procedure:

Fundamental Issues in a Comparative Perspective (Intersentia 2015) 95.

23 Swedish Code of Judicial Procedure 1998 (Rättegångsbalk) (SWE), ch 35 s 1 para 2.

24 Eric Bylander, Evidence in Civil Law – Sweden (Institute for Local Self-Government and Public Procurement Maribor (Lex localis) 2015) 9.

15

irrelevant or can be presented in another way with considerably less trouble or costs, the judge shall reject it.

Therefore, Swedish law of evidence is a well-known example of the liberal approach, and it includes international arbitration disputes too. Relevant legislation allows the parties to rely on any kind of documents, statements, and occurrences to prove their case. The arbitrators in their discretion may freely evaluate the evidence presented by the parties, as well as occurrences during the proceedings. Consequently, reliance cannot successfully be placed on any technical rules concerning admissibility of evidence

and there are very few formal rules to regulate assessment of the evidence.

Thus, the Swedish Arbitration act (updated in 2019) gives the same level of broad discretion for the arbitrators as the Swedish code of judicial procedure gives it for the judges. The legal provisions, related to evidence, are contained in Article 25 (2) of the Swedish Arbitration Act, have only two possibilities for the arbitrators to reject the evidence in arbitration proceedings:

• If the evidence is manifestly irrelevant to the dispute;

• If the evidence was presented too late in the arbitration.

However, even these provisions do not completely restrict such right for the parties to apply any accessible evidence. Firstly, the word ‘may’ is used in the sentence of Article 25 (2) and this gives a right of choice to the arbitrators whether to apply this rule or not. Secondly, the Swedish Arbitration Act does not set any time limitations for the presentation of evidence, and therefore it is not clear for which date the tribunal should set the ‘deadline’ for the parties.

Moreover, in the practice, arbitrators are generally reluctant to reject evidence,

because the tribunals mostly decide to avoid the prolonged process of arbitrations, if one of the parties would have a reason of challenge on the base it did not have the opportunity to present the evidence in the case.

25 Swedish Code of Judicial Procedure 1998 (Rättegångsbalk) (SWE), ch 35 s 7.

26 Kaj Hobér, International Commercial Arbitration in Sweden (Oxford University Press 2011) para 6.101.

27 Bylander (n 24) 9.

28 Hobér (n 26) para 6.103.

16

Practically, most arbitrators would be reluctant to accept any restrictive rules of evidence that prevent them from establishing the facts they deem necessary for deciding the dispute. Even though the arbitrators have the power to reject evidence as irrelevant, this is relatively seldom done in practice. Given the fact that it is difficult to determine before the hearing what is irrelevant, and considering that no second hearing on the merits may take place, most arbitrators tend to take a rather liberal approach.

Under the Swedish law of evidence, there are no restrictions against submitting evidence which the opposing party alleges is forged or has been stolen from him. Thus, such documents would not be rejected as inadmissible per se.

There is also no prohibition against hearsay evidence. So thereby, it is a responsibility for the arbitral tribunal to take account of such factors when evaluating the evidence in question.

Therefore, the illegally obtained evidence will in most cases be accepted by the arbitral tribunal which will, however, attribute an evidentiary value to the evidence taking circumstances surrounding the evidence into account.

3.1.2. Switzerland

International arbitration and its procedure in Switzerland is regulated by the Federal Statute on Private International Law, which covers also the evidentiary matters within arbitration. Particularly, Article 184 ‘Taking of evidence’ provides the fundament for further research of the evidentiary issues on the territory of Switzerland.

Article 152 (2) of the Swiss Federal Code of Civil Procedure ‘Right to evidence’

proposes an interesting solution, where it stated that ‘illegally obtained evidence shall be considered only if there is an overriding interest in finding the truth’.

This means an express provision, which refers to the illegal evidence and, at the

29 ibid para 6.102.

30 ibid.

31 ibid.

32 Robin Oldenstam and Mannheimer Swartling advokatbyrå, Mannheimer Swartling’s Concise Guide to Arbitration in Sweden (Mannheimer Swartling Advokatbyrå 2014) para 5.1.

33 Civil Procedure Code 2008 (Cudesch da procedura civila svizzer) (SWI) art 152 para 2.

17

same time, contains a reference to the balance of interests.

So even though a clear provision of Swiss law deals with the admissibility of evidence in civil cases, the exclusion of evidence depends on the prevailing interests, which are the interests in the protection of human rights and the interests of other affected persons.

The principle of good faith also plays a serious role during the assessment of the admissibility of the evidence among the Swiss arbitrators. This principle can prevent the arbitrators from admitting evidence that a party has obtained by illegal or unlawful means. According to the Swiss Federal Supreme Court, courts shall weigh in the balance the interest in protecting the right that was infringed by obtaining the evidence against the interest in establishing the truth.

Applying this principle to arbitral tribunals sitting in Switzerland, an unlawfully acquired piece of evidence can still be admissible if the interest in establishing the truth is preponderant.

Normally, the arbitrators also use the liberal approach in assessing evidence within the dispute and use the pragmatic way when deciding the issue of admissibility of evidence. Moreover, they tend to focus on establishing the facts necessary for the determination of the facts and are reluctant to be limited by technical rules of evidence that might prevent them from achieving this goal.

This fact means Switzerland has one of the most liberal legislation in regard to illegally obtained evidence, comparatively to the other states. Swiss law does not only has any restrictions for application of illegally obtained evidence but directly confirms that such evidence may be used if the interest of truth finding prevails (in civil litigation). The arbitration legal provisions also provide a very flexible manner in relation to the issue of evidence, and practically the arbitrators rather admit ‘doubtful’ evidence than reject it.

34 Rijavec and Keresteš (n 22) 93.

35 Marc D. Veit 'Chapter 2, Part II: Commentary on Chapter 12 PILS, Article 184 [Procedure:

taking of evidence]' in Manuel Arroyo (ed), Arbitration in Switzerland: The Practitioner's Guide (2^nd edn, Kluwer Law International 2018) 172.

36 ibid.

37 ibid.

18

3.1.3. United States

It is well-known by many lawyers exclusionary rule in the United States, which can be described as the principle that evidence seized by police in violation of the Fourth Amendment to the US Constitution may not be used against a criminal defendant at trial.

But this legal principle has serious restrictions in its usage in the USA, as firstly, its scope is narrowed only for the criminal cases, and secondly, even in the criminal cases, there are included several limitations on the exclusionary rule. Therefore, the restriction of the admitting of the illegally obtained evidence is not unconditional, and the scope of this principle does not act within the scope of international arbitration.

There are accessible precedents when the claimant in the case submitted that in civil cases (in US litigation) a court could still admit illegally obtained evidence if it was relevant and probative. In this respect, it relied on the decision of the Superior Court of New Haven, Connecticut, in Xiukun Lin v National Railroad Passenger Corp. [2004 WL 113495], and two other cases: the decision of the Supreme Court of Louisiana in Pullin v Louisiana State Racing Commission [484 So.2d 105], and the decision of the Court of Appeals in Maryland in Sheetz v Baltimore [315 Md. 208, 553 A.2d 1281].

The liberal approach to the evidentiary matters remains also in the Federal Arbitration Act, which governs the arbitration of the disputes on the territory of the United States.

Moreover, there is no even note about gathering and presenting evidence, and procedural matters (evidence included) should always be determined by the parties, the arbitration rules, or the tribunal. Alike other procedural matters, the question of which kinds of evidence are acceptable, is always a choice of the parties or the tribunal. The Federal Arbitration Act does not address any rules about evidence, so the decision about the admissible or non- admissible evidence is only between the sides of the dispute, and the tribunal.

38 The New Encyclopaedia Britannica (15th edn, Encyclopaedia Britannica 2007)

<https://www.britannica.com/topic/exclusionary-rule> accessed 26 May 2019.

39 Methanex Corporation v United States of America, UNCITRAL, Final Award of the Tribunal on Jurisdiction and Merits, 3 August 2005, pt II ch 1 p 23.

40 Federal Arbitration Act 1926 (USA) s 1.

19

3.1.4. England and Wales

In English civil proceedings, there is no rule of law that evidence must be excluded because it has been obtained illegally and/or improperly. Generally, the evidence is not rendered inadmissible merely by the manner in which is it obtained, with the exception of evidence obtained by means of torture.

The relevance of evidence plays a more decisive role in civil cases, so the evidence is admissible even though it has been obtained illegally or unlawfully, provided the material is relevant.

In fact, over the years, English judges have made it clear that they are more concerned about vindicating the truth with the aid of relevant evidence, rather than excluding such evidence on the ground that it has been improperly obtained. In short, the main general rule governing the admissibility of evidence by English law is that all evidence that is sufficiently relevant to an issue before the court is admissible, and all that is irrelevant, or insufficiently relevant, should be excluded.

The same situation is currently within the international arbitration in England and Wales. It is governed by Arbitration Act 1996, and particularly by the Article 34 (2) (f), which confirms the duty of arbitrators to decide all evidentiary matters –

‘It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter… whether to apply strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material (oral, written or other) sought to be tendered on any matters of fact or opinion, and the time, manner and form in which such material should be exchanged and presented’.

Additionally, in particular, the weight to be attached to each piece of evidence presented is entirely a matter for the tribunal to determine.

41 Richard Glover and Peter Murphy, Murphy on Evidence (13^th edn, Oxford University Press 2013) 53.

42 Neil Andrews ‘Civil Procedure’ in Andrew Burrows (ed), English Private Law (3^rd edn, Oxford University Press 2013) para 22.105.

43 Colin Tapper and Rupert Cross, Cross and Tapper on Evidence (Oxford University Press 2010) 64.

44 Arbitration Act 1996 (UK) pt I s 34 sub-s (2) (f).

45 David St. John Sutton, Judith Gill, et al., Russell on Arbitration (Sweet & Maxwell 2015) para 5-141.

20

In practice, it also confirmed that the tribunals tend to apply the IBA Rules to solve any kind of issues with evidence in the arbitration proceedings.

3.2. Arbitration rules

Despite the arbitration rules provide the general procedure for the arbitration proceedings, they give little advice on how to deal with evidentiary matters.

Article 27 (4) of the UNCITRAL Arbitration Rules, used in ad hoc arbitration proceedings, keeps the liberal approach in the admissibility of evidence – ‘the arbitral tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered’.

As emphasised in the travaux preparatoires of the 1976 UNCITRAL Rules, ‘[i]n making rulings on the evidence, arbitrators should enjoy the greatest possible freedom and they are therefore freed from having to observe the strict legal rules of evidence.’

Although the tribunal may choose to adopt own policy on how to evaluate the evidence, there is an opinion that it should not construe the rule as permitting the unrestricted admission of evidence. For example, any evidence which leads to delays in the proceedings, or evidence in the form of information concerning confidential negotiations, is generally considered inadmissible as evidence, and therefore might be rejected.

Also, there is a note that Article 27 (4) does not import licence for disorderly or unfair proceedings, and the latter provision states that each party is to have a

‘reasonable’, but not unlimited opportunity to make out its case.

Thus, Article 27 (4) cannot be abused to allow ‘unrestricted admission of evidence’, for example, where deadlines for submitting documentary evidence have been disrespected, and in such cases, the evidence should normally be rejected.

46 Paula Hodges, Craig Tevendale, Vanessa Naish, Hannah Ambrose ‘Arbitration in the United Kingdom’ <https://www.lexology.com/library/detail.aspx?g=1ea14eb7-32bd-4287-89b2- dda5c172bf24> accessed 25 May 2019.

47 Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL Arbitration Rules) (as revised in 2010) art 27 (4).

48 Report of the Secretary-General on the Preliminary Draft Set of Arbitration Rules, UNCITRAL, 8th Session, UN Doc A/CN.9/97 (1974) 176.

49 David D Caron and Lee Caplan, The UNCITRAL Arbitration Rules: A Commentary: (With an Integrated and Comparative Discussion of the 2010 and 1976 UNCITRAL Arbitration Rules) (2^nd edn, Oxford University Press 2013) 572.

50 Jan Paulsson and Georgios Petrochilos G, UNCITRAL Arbitration (Kluwer Law International 2018) 240 para 15.

51 ibid 241.

21

Institutional arbitration rules also provide the full discretion for the tribunals.

ICSID Arbitration Rules state in Rule 34 (1) that ‘the Tribunal shall be the judge of the admissibility of any evidence adduced and of its probative value’,

and there are already examples of perception of the liberal approach in the admissibility of evidence by the ICSID tribunals.

LCIA Rules (2014) confirm the possible discretion for the arbitrators, but simultaneously giving them choice

‘to decide whether or not to apply any strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material tendered by a party on any issue of fact or expert opinion’.

SCC Rules (2017) use the same formula for the description of the arbitrators’ powers, when ‘the admissibility, relevance, materiality and weight of evidence shall be for the Arbitral Tribunal to determine’.

3.3. International soft law

The UNCITRAL Model Law, which was developed to decrease the general level of disparity between domestic laws, serves as an applied prototype for many national arbitration laws, especially in civil law countries. Its provisions also state the same broad level of discretion for the tribunals, which is enshrined in Article 19 of the UNCITRAL Model Law.

3.3.1 IBA Rules

International Bar Association Rules on the Taking of Evidence (hereinafter – the IBA Rules) is currently one of the most powerful legal tools (or para-regulatory texts), which provides significant instruction to deal with the evidentiary matters in the international arbitration. Nowadays, most arbitration practitioners use the IBA Rules in the proceedings

and it becomes a real opportunity to rely on it as to

52 ICSID Rules of Procedure for Arbitration Proceedings (ICSID Arbitration Rules) r 34 (1).

53 Lao Holdings N.V. v The Lao People’s Democratic Republic, ICSID Case No. ARB(AF)/12/6, Procedural Order No.11, 25 June 2018, p. 2, s b.

54 LCIA Arbitration Rules (2014) art 22.1 (vi).

55 SCC Arbitration Rules art 31 (1).

56 UNCITRAL Model Law art 19.

57 Christoph Müller ‘Importance and Impact of the First PRT, the IBA Evidence Rules’ in Daniele Favalli (ed), Sense and Non-Sense of Guidelines, Rules and Other Para-Regulatory Texts in International Arbitration (Juris 2015) 83.

22

rely on the legal provision in litigation. Even if the parties have not agreed to, or when the arbitral tribunal has not decided to apply the IBA Rules, they still remain guidelines for the parties and the tribunals, what is provided in the foreword – ‘parties and Arbitral Tribunals may…use them as guidelines in developing their own procedures’.

Although, the IBA rules do not cover all issues related to the taking of evidence.

The issue of admissibility of evidence is one of those issues, as the Article 9.1 of the IBA Rules laconically provides that ‘the Arbitral Tribunal shall determine the admissibility, relevance, materiality and weight of the evidence’,

and no further advice how they shall assess the admissibility, relevance, materiality and weight of the evidence.

Article 9.2 of the IBA Rules deals with evidence that may be excluded, and tribunals are more likely to exclude evidence from production than to exclude evidence that has been already submitted to the tribunal in the proceedings.

Generally, if the tribunal has concerns about evidence that has been submitted, the tribunal can always opt to give less weight that it would otherwise have.

3.3.2 Prague Rules 2018 (final draft version)

Rules on the Efficient Conduct of Proceedings in International Arbitration (hereinafter - Prague Rules) is a new type of inquisitorial rules, developed by mainly lawyers from civil law countries, and supported by many arbitral institutions in Europe. The main purpose of drafting of the Prague Rules is to provide an alternative option of soft law rules in relation to evidentiary matters, and therefore, the authors of these rules rather had tried to encourage tribunals to take a more active role in managing the proceedings, and thus, to adopt the rules on the taking of evidence closer to the civil law regime.

Although, the Prague Rules provide the wide discretion for the tribunals again, and that is included in

58 IBA Rules foreword 3.

59 ibid art 9.1.

60 Thomas H Webster, Handbook of UNCITRAL Arbitration: Commentary, Precedents and Materials (2^nd edn, Sweet & Maxwell 2015) para 27-122.

61 Rules on the Efficient Conduct of Proceedings in International Arbitration (Prague Rules) 2018 (final draft version), Note from the Working Group 2

23

the text of provisions. Article 2.4 (e) (iv) states that ‘the arbitral tribunal may at the case management conference or at any later stage of the arbitration, if it deems it appropriate, indicate to the parties…its preliminary views on… the weight and relevance of evidence submitted by the parties.’

The Prague Rules also provide the principle of iura novit curia, even with the article with the same title, and ‘the arbitral tribunal may apply legal provisions not pleaded by the parties if it finds it necessary’.

Of course, it needs some further coordination with the parties, but still, it shows the maximum of power, given to the arbitrators by the Prague Rules.

3.4 Interim concluding remarks

First of all, accordingly to the public international law, the parties should follow the legal rules of lex loci arbitri, and they do it formally in the relation to evidentiary matters, but the most of national arbitration rules provide little guidance for the parties, and for the tribunals too. Indeed, this field of gathering and presenting the evidence in the proceedings is comparatively free for the experiments, and the parties can adopt any rules of evidence they agree, additionally to national arbitration law in the seat of arbitration. As the consequence, many of contemporary tribunals resort to the guidance, provided by the ‘soft law’ of the IBA Rules, which provisions about taking and gathering evidence are recognisable among the arbitrators and parties.

Secondly, as a consequence of liberal approach used in the countries above, there is a clear formula used by the majority of arbitration rules and soft law tools, when the arbitrators have the broad, or even full discretion to assess the admissibility, relevance, materiality and weight of given evidence. There is also no detailed guidance on how to deal with illegally obtained evidence in the selected national arbitration laws, so the tribunals use specially designated for the purpose of evidentiary matters IBA Rules. As assumed, it takes its roots in litigation of those particular countries, as the legislation there is generally not against any kind of evidence, especially if it does not touch issues of privacy. The analysis shows that most of the tribunals in researched countries are reluctant to

62 ibid art 2.4.

63 ibid art 7.2.

24

reject any kind of evidence, as they tend to accept all evidence to draft a just and well-supported award. Additionally, the analysis of national arbitration laws, institution rules and soft law tools shows that the illegally obtained evidence is, in the most cases, potentially admissible in the disputes as the existing legislation states no relevant provision about non-admissibility of illegal evidence. Moreover, as aforementioned above the tribunals often take a pragmatic way and decide to take such evidence into the dispute to avoid the situation, when one of the parties may challenge the award on the basis of not given right to be heard.

4. Practice in case law

The method of research on case law and its analysis becomes prevalent in the case of evidentiary matters, where the legal provisions in the national arbitration laws, as aforementioned above, may not solve the issue of illegally obtained evidence.

Generally, as aforementioned above, the tribunal has discretion in deciding on the relevance, credibility and admissibility of evidence,

and this fact should be taken in attention when the evidence topic is researched.

The IBA Rules and the future Prague Rules cover the very important issues about the evidence and may serve as the guidance and even as the obligatory legal tool in some of the cases, but they still give more discretion to the tribunals. So, therefore, the case law still remains to be the main source to analyse the issues in relation to illegally obtained evidence. It is expedient to start with notice of first international disputes with the issue of admissibility of evidence, and move forward to recent investment arbitration cases.

4.1. Rejection of illegally obtained evidence in the jurisprudence

Due to the set of analysed cases, there has been a negative approach to illegally obtained evidence initially within arbitrators in investment treaty arbitration disputes, and they rejected such evidence with different reasoning. This sub-

64 Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law (2^nd edn, Oxford University Press 2012) 285.

25

section is concentrated on such cases, where the illegally obtained evidence has been rejected (Methanex v United States, EDF v Romania, Libananco v Turkey).

Methanex v United States had become one of the first cases in the investment treaty arbitration, where the issue of illegally obtained evidence was unhesitatingly examined by the tribunal. Methanex, which has been of the biggest producers of methanol, claimed the submission against USA under UNCITRAL Arbitration Rules and Chapter 11 of the NAFTA on the base of breach of national treatment obligation, minimum standard of treatment and rules of expropriation and compensation. The issue of evidence was crucial in this particular case, and the tribunal had paid enough awareness and attention to it, providing the own thoughts and considerations on the admissibility of illegally obtained evidence in the final award.

First of all, it is important to say that Methanex had tried to use documents, obtained differently from Yukos and ConocoPhillips cases, as they had been received through unlawful inspection in the trash area by the employees of the lobbying organisation.

The respondent claimed the motion to exclude illegally obtained evidence from the evidentiary record on the basis of several grounds. It had found that the submission of private files of witness is a contravention of fundamental notions of fairness, referring to Article 15 (1) of UNCITRAL Arbitration Rules,

and where is stated that ‘[t]he arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case.’

The tribunal reacted on that fact that ‘[a]s a general principle, therefore, just as it would be wrong for the USA ex hypothesi to misuse its intelligence assets to spy on Methanex (and its witnesses) and to introduce into evidence the resulting

65 Methanex Corporation v United States of America, UNCITRAL, Motion of Respondent to Exclude Certain of Methanex’s Evidence, 18 May 2004, p. 3.

66 UNCITRAL Arbitration Rules art 15 (1).

26

materials into this arbitration, so too would it be wrong for Methanex to introduce evidential materials obtained by Methanex unlawfully.’

This confirms that the tribunal had not been persuaded by nor civil cases in US litigation, where the illegally obtained evidence had been allowed, and neither the admitted authenticity of those obtained documents. Instead, the tribunal used another legal reasoning and stated the ‘reckless indifference by Methanex as to whether civil trespass was committed by its collection-agents’.

Finally, the tribunal rejected to admit this evidence on the basis of the principle of good faith and as the

‘Methanex’s conduct, committed during these arbitration proceedings, offended basic principles of justice and fairness required of all parties in every international arbitration.’

Another important element for the tribunal was the materiality of evidence because just the unlawful evidence is not enough for the arbitrators to exclude evidence from its consideration. Moreover, the tribunal noticed that ‘[b]y the time of the main hearing in June 2004, the Vind Documents were of only marginal evidential significance in support of Methanex’s case’,

what means the tribunal recognised this illegally obtained evidence irrelevant for the case and confirmed the usefulness of the materiality element for the admitting evidence in the arbitration.

Methanex v United States is a notable case for the evidentiary matters not only in relation to the precisely paid attention for the issue of admissibility of evidence, but also in relation to rejecting the litigation practice in the United States, when the so-called exclusionary rule acts only in regard to evidence in criminal cases, but is absent in civil disputes, where such evidence is acceptable. Thereby, the tribunal used the final award as the warning to the future parties and tribunals, that such practice of ‘fishing expedition’ is inadmissible for the international arbitration disputes.

67 Methanex Corporation v United States of America, UNCITRAL, Final Award of the Tribunal on Jurisdiction and Merits, 3 August 2005, para 54.

68 ibid para 55.

69 ibid para 59.

70 ibid para 56.

27

Another example of truly restrictive approach in the evidentiary matters is EDF v Romania, where the company EDF had commenced the ICSID arbitration on the basis of alleged expropriation, unfair and inequitable treatment, and arbitrary and discriminatory measures from the Romanian government.

EDF alleged Romanian government that it asked for a bribe to be permitted to continue its business in Romania, and in the case of refusal from EDF, the government decided to damage investment of the claimant. With reason to confirm it, the claimant did the audio tape recording of the conversation between the representatives of the company ASRO in a joint venture with EDF, and member of the staff of Romanian government, where the request of a bribe was confirmed.

Therefore, the claimant applied this audio tape together with two transcripts before the oral hearing in the proceedings in the hope that the new evidence will show the bad faith intentions from the side of respondent.

The respondent had objected the new evidence on the basis of bad faith by EDF, lack of authenticity, and violation of the certain provisions in legal acts as Constitution of Romania, Universal Declaration of Human Rights and European Convention on Human Rights.

In conclusion, the tribunal provided the Procedural Order, where it confirmed the illegal nature of such type of audio tape evidence. This document provides detailed reasoning of the tribunal’s opinion about the admissibility of evidence generally and in this particular case. First of all, the tribunal confirmed that

‘[a]dmission of evidence in an ICSID arbitration is a procedural matter’ and therefore, it should be governed by international law only and ‘principles of international law may be applicable.

Despite the already existing liberal practice of the courts and tribunals till 2008, the tribunal concluded that the discretion, given to the arbitrators, should not be absolute, and there are limits to it.

Moreover, the tribunal considered the conduct of EDF and the circumstances under which it proffered the audio tape to be against the principles of good faith

71 EDF (Services) Limited v Romania (n 3), para 1.

72 ibid para 9.

73 ibid para 47.

28

and procedural fairness.

The ground of such decision of the tribunal is in the IBA Rules, which were used as the guidance, and the tribunal refers to the Article 9 (2) (g), which ‘provides that evidence may be excluded in the presence of

“considerations of fairness or equality of the Parties that the Arbitral Tribunal determines to be compelling”’.

Despite of the confirmation in the IBA Rules, the tribunal assumed that ‘there are good reasons to believe that those principles of good faith and procedural fairness have not been respected’,

but although, the tribunal does not sum up or explain what ‘good’ reasons are persuasive enough for the arbitrators to refuse such evidence. Nevertheless, the tribunal in EDF v Romania directly confirmed the non-availability of municipal law in the procedural and evidentiary matters in the international arbitration, and this leads to the conclusion that national legislation cannot play an important role in the evaluation of evidence.

Libananco v Turkey is the one another example of ICSID case, where the tribunal faced the question of illegally obtained evidence from the respondent’s side, and additionally, the doctrine of ‘clean hands’, raised by the claimant.

Libananco, a Cyprus corporation, held shares in two Turkish utility companies, Cukarova Elektrik Anonim Sirketi (CEAS) and Kepez Elektrik Turk Anonim Sirketi (Kepez), which benefited from concession agreements with the Government of Turkey.

In June 2003, Turkey cancelled the concession agreements and took over certain facilities belonging to the concessionaires.

Turkey sought to justify its conduct by arguing that CEAS and Kepez had breached their obligations under the concession agreements, and had refused to co-operate with the Turkish authorities.

The claimant commenced ICSID arbitration in 2006, alleging that Turkey had breached the ECT guarantees. The tribunal found it lacked jurisdiction over the

74 Cherie Blair and Ema Vidak Gojković, ‘WikiLeaks and Beyond: Discerning an International Standard for the Admissibility of Illegally Obtained Evidence’ (2018) 33 ICSID Review - Foreign Investment Law Journal 252.

75 EDF (Services) Limited v Romania (n 3) para 47.

76 ibid.

77 Blair and Vidak Gojković (n 74) 253.

78 ibid.

29

case and dismissed the claims. However, while the case was in progress, it became apparent that the Turkish authorities were intercepting Libananco’s electronic communications, including between Libananco and its legal counsel.

It transpired that in this way Turkey obtained around 2000 legally privileged and confidential e-mails.

The position of the claimant was in that Turkey had created an untenable situation by abusing its sovereign powers to gain an unfair procedural advantage,

indeed the respondent submitted that the surveillance activities had nothing to do with the investment arbitration and that the files intercepted (including, for example, draft versions of the legal submissions) were never shared with the department within the State Attorney’s office handling the arbitration.

The tribunal considered the importance of confidentiality and legal privilege and the obligation of all parties to arbitrate fairly and in good faith. Perhaps unsurprisingly, the tribunal recognised the need to exclude all privileged and confidential communication and concluded that ‘[t]he Tribunal attributes great importance to privilege and confidentiality, and if instructions have been given with the benefit of improperly obtained privileged or confidential information, severe prejudice may result. If that event arises, the tribunal may consider other remedies available apart from the exclusion of improperly obtained evidence or information’.

Consequently, the tribunal stated to exclude all privileged documents and information from the evidence

and to destroy all communication in relation to the arbitration which had been intercepted by the State Attorney.

4.2. Caratube v Kazakhstan as the example of liberal approach in relation to evidence

The investment treaty arbitration has also other examples of another philosophy in relation to illegally obtained evidence. Caratube v Kazakhstan is a good example

79 ibid.

80 Libananco v Turkey (n 13) para 72.

81 ibid para 44.

82 ibid para 75.

83 ibid para 80.

84 ibid para 82 (subparas 1.1.6–1.1.7).

85 ibid para 82 (subpara 1.1.3).