Digital Evidence: The Admissibility of Leaked and Hacked Evidence in Arbitration Proceedings

Ferreira, Daniel; Gromova, Elizaveta

doi:10.1007/s11196-023-10014-1

Cited by 3 publications

(2 citation statements)

References 12 publications

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“…For example, in an ICSID case, Venezuela 15 relied upon Wikileaked diplomatic cables (confidential communications between ConocoPhillips' counsel and representatives from the U.S. Embassy in Caracas). 16 In another case involving Kazakhstan, the ICSID tribunal admitted leaked e-mails as evidence adduced by the private party (Caratube International Oil Company). 17 Leaked videos were also admitted by a PCA tribunal against Canada in Tennant Energy, LLC v. Government of Canada.…”

Section: Digital Evidence In Arbitration Institutions Involving Statesmentioning

confidence: 99%

Digital Evidence in Disputes Involving States

Brantes Ferreira,

Gromova

2024

AJIL Unbound

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The use of digital evidence increases concurrently with increased digitalization of the larger world and of justice processes. This essay aims to address the use of digital evidence in interstate disputes and other disputes involving states. It focuses on the case law of two international arbitral bodies—the Permanent Court of Arbitration (PCA) and the International Centre for Settlement of Investment Disputes (ICSID)—and of the International Court of Justice (ICJ). The analysis discloses three main concerns when dealing with digital evidence: authorship, authenticity, and chain of custody. We propose that courts create permanent and ad hoc digital forensic expert committees to draft guidelines and perform a preliminary admissibility evaluation of digital evidence.

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Section: Digital Evidence In Arbitration Institutions Involving Statesmentioning

confidence: 99%

Digital Evidence in Disputes Involving States

Brantes Ferreira,

Gromova

2024

AJIL Unbound

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“…The paper concludes by stating that the admissibility of such evidence depends on the arbitrator's discretion. Therefore, it emphasizes the importance of thorough analysis of evidence and well-reasoned awards [9].…”

Section: The Present Issuementioning

confidence: 99%

International Arbitration in the Digital World

Łągiewska,

Bhatia

2024

Int J Semiot Law

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International arbitration is one of the most popular forms of alternative dispute resolution mechanism when disputing parties fail to resolve the dispute on their own, and want a third party to suggest a resolution, and at the same time, limit the time as well as the expense of litigation over which they have absolutely no control. Arbitration crucially depends on the parties' agreement to resolve disputes through private adjudication by a single arbitrator or a tribunal of more than one, appointed in accordance with rules of a specific arbitration institution that the parties themselves have agreed to adopt, usually by including an arbitration clause in their contract. Another factor that favours international arbitration as an attractive dispute resolution mechanism is that like judgment in litigation, arbitration award is enforceable and cannot be challenged in a court of law, except on procedural grounds. Thus, some of the main advantages of arbitration are that it is like litigation in effect but unlike litigation, in that it is considered to be informal, expedient, economical, private, and confidential in nature, and at the same time, gives sufficient freedom to disputing parties in the way it is actually conducted. However, in actual practice over the years, it has encountered several challenges, including its large-scale colonisation by litigation practitioners, giving rise to hybrid (often contested) identities and discourses of arbitigation (litigation and arbitration) making it similar to litigation that it was intended to replace [1]. In more recent years, arbitration has been facing new challenges as a result of an increasingly compelling present-day digital environment in which it is

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