Do we need an exclusionary rule in international arbitration?

Abstract

Modern adjudicatory dispute resolution procedures all have in common that a final decision is issued after the collection and analysis of evidence. As consequence, the most varied systems developed their own rules regarding the collection and admissibility of evidence, accounting for policy considerations that are in great part common, but in other parts can diverge greatly between systems, including concerning exclusionary rules. Attorneys and arbitrators at times feel tempted to apply exclusionary rules in international arbitrations when faced with evidence obtained by morally questionable means; however, the application of exclusionary rules created in domestic systems may not only be compatible with international arbitrations, but it might also go against the very own policy considerations that led to the creation of these exclusionary rules.