ABSTRACT

The issue of admissibility of illegally obtained evidence comes with its own legal, moral, and ethical concerns. In India, the courts have settled this issue by pronouncing judgements favouring admissibility of such evidence. On the other hand, in arbitration, the issue is less settled. Due to the lack of binding value of judicial decisions and arbitral awards, the arbitral tribunals are able to engage in deep analysis of the issue from legal as well as factual standpoint. Arbitral tribunals make a conscious decision taking into consideration factors such equality and fairness. The Indian courts are more rigid and follow the rule laid down in the judgements. This paper highlights the difference in the approaches of the Indian judiciary and arbitral tribunals. In the end, both practices are compared to arrive at a conclusion as to which approach favours justice, equality, and fairness.

1. INTRODUCTION

The term evidence is derived from the Latin root "evidere" which means "to show clearly; to ascertain; to prove".1 There are elaborate provisions laid down by the law for proving evidence's admissibility, and relevancy. Despite having extensive provisions that prescribes the procedural and substantive rights related to evidence, one of the controversial areas in evidence law remains that of admissibility of illegally obtained evidence. With different fields coming up with their own solutions to the issue, the jurisprudence is not settled on it. We shall look at the practices followed by the Indian judiciary for admitting illegally obtained evidence. Later, we shall compare the same with the practices followed in arbitration.

In this paper, I have juxtaposed the practices followed in Indian judiciary with the practices followed by arbitral tribunals. The reasoning for admitting or not admitting illegally obtained evidence needs to be studied from the perspective of the judiciary whose hands are tied by the doctrine of stare decisis or in other words 'precedents'. On the contrary, arbitral tribunals function on their own will, and in principle are bound only by the arbitration agreement. It is an interesting study to see how arbitral tribunals, who are given freedom to deviate from the practices of the judiciary in many aspects, come up with the reasoning for admissibility or inadmissibility of illegally obtained evidence. In the end, I shall analyse which one of the two institutions gives better reasoning for admitting or not admitting illegally obtained evidence.

2. WHAT IS ILLEGALLY OBTAINED EVIDENCE?

Before we delve into the trends of admissibility of illegally obtained evidence, we must discuss exactly when evidence is classified as illegally obtained. Using literal interpretation, we can conclude that evidence is said to be 'illegally obtained' when a party to the legal proceeding or arbitration procures evidence in contravention of the law. For instance:

  1. In a civil suit between X and Z. Plaintiff X illegally enters the premises of Z's house and steals a document that proves Z's culpability. Such evidence may be relevant under Section 7, 8, etc. (Chapter II) of the Evidence Act.2 However, it is pertinent to note that to obtain the document, Plaintiff 'X' committed the offence of Criminal Trespass punishable under Sec. 447 of the Indian Penal Code.3 Whether the Court should consider a document which was retrieved by committing an offence is the moot question here.
  2. In a criminal proceeding, person 'Z' is accused of committing murder. The police authorities conduct illegal search and seizure without following the procedure laid down by law in the house owned by 'Z'. Consequently, the police authorities find the murder weapon used by 'Z'. This murder weapon is relevant under the Evidence Act. However, when we look at the means of procuring the evidence, then questions pertaining to its admissibility arise.

One can easily notice the many legal, moral, and ethical questions that are involved with the issue of illegally obtained evidence. If a person is violating the law to obtain certain evidence, then that evidence can be classified as illegally obtained evidence. Certain methods have been classified through which evidence is illegally obtained in both civil and criminal proceedings. Methods such as "eavesdropping, illegal search, violating the body of a person" etc.4 The Indian judiciary comes face-to-face with this issue many times where evidence has been illegally obtained especially by "whistle-blowers, police agencies and investigative agencies conducting illegal searches, and approvers looking for favour with the state machinery etc".5 The Criminal Procedure Code lays down various safeguards that the police have to follow for searching evidence against the accused.6 Sometimes, these provisions are not adhered to, which leads to the search conducted by the police authorities declared as 'illegal'. Nonetheless the evidence so obtained is not per se inadmissible.7

Now we will go through the trends followed by the Indian judiciary and arbitral tribunals regarding admission of illegally obtained evidence.

3. ADMISSIBILITY OF ILLEGALLY OBTAINED EVIDENCE IN INDIAN JUDICIARY

The question that we are dealing with is not whether an illegally obtained evidence is relevant rather the question is whether it is admissible or not according to the Indian judiciary. The Tenth Law Commission of India submitted a report on illegally obtained evidence in 1983.8 The Law Commission's 94th Report (hereinafter 'the Report') accurately pointed out the core issue by stating that "due to the absence of a specific statutory or constitutional provision which provides for excluding particular types of evidence, the fact that evidence was obtained illegally remains of no consequence in regard to its admission at the criminal trial".9 As there is no provision governing the same, the question of admissibility of illegally obtained evidence is kept for the courts to decide. The Report identified four different categories of countries and their ways of dealing with illegally obtained evidence.10

  1. First category countries: Illegally obtained evidence is considered admissible because there exists no law that excludes evidence on the ground that it was obtained under an illegal search or seizure, or was otherwise illegally obtained.
  2. Second category countries: The use of illegal or improper methods in procuring evidence is regarded as relevant to the extent that the court can reject such evidence.
  3. Third category countries: There exists a specific statutory provision that excludes the illegally obtained evidence.
  4. Fourth category countries: Exclusion of illegally obtained evidence through constitutional guarantee or the judicial construction of such constitutional guarantee.11

According to the Report, India is a first category country.12 The position of law as to the admissibility of illegally obtained evidence in Indian judiciary is quite clear. Through plethora of case laws, illegally obtained evidence is considered admissible in India. However, the police officers or persons who retrieve the evidence by illegal means are subjected to some punishment by way of compensation. The Report recommended incorporation of Section 166A into the Indian Evidence Act, which would grant courts the power to refuse the admission of any illegally obtained evidence, if the court believed that the nature of the means of gathering the evidence would lead to disruption of the administration of justice.13 Further, the Section was drafted in a manner which advised courts to investigate surrounding circumstances while admitting or refusing evidence. The circumstances as enumerated by the Report were the importance of the evidence, the seriousness of the case and whether the circumstances justified the action. This Section was never inserted in the Indian Evidence Act. Till today, the jurisprudence on admissibility of illegally obtained evidence is dictated by case laws.

In Pooran Mal v. Director of Inspection14 the Hon'ble Supreme Court of India declined to issue a writ in favour of the appellant and against the admission of evidence gathered by authorities by way of search and seizure in a manner that contravened Section 132 of the IT Act. The Court arrived at this decision because according to it, Section 5 of the Indian Evidence Act provides for relevancy as the only test of admissibility. Furthermore, the Court observed that no other law explicitly or implicitly affords for the exclusion of illegally obtained evidence. It was the opinion of the Court that "neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search."

In R.M. Malkani v. State of Maharashtra15 the state authorities used a recording device to record dialogues between the petitioner and a third party about the demand of bribe. It was the contention of the party that the evidence that authorities produced was illegally obtained and should not be admitted. However, the Court did not entertain this contention and held that illegally obtained evidence was admissible. Furthermore, the Court observed that "the Police Officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge."

In Dnyaneshwar v. State of Maharashtra16, the respondents searched the house of the petitioner illegally under the garb of search under Sec. 165 Cr.P.C. This provision is enacted to enable the state authorities to make search in case of urgency without a search warrant from the Magistrate. However, certain procedure as mentioned in the Code is still mandatory to be followed. The Court observed that the authorities did not note down the secret information that they received at that time and also did not follow the provisions of Sec. 165 Cr.P.C. The Court held that the search was illegal and the State is liable to pay compensation. This is a case where the Court could ask the respondents to pay a certain amount for conducting illegal search and seizure however, still consider the evidence obtained from such search if it is relevant.

4. ADMISSIBILITY OF ILLEGALLY OBTAINED EVIDENCE IN ARBITRATION

Unlike Indian judicial proceedings, the admissibility of evidence is not governed by a law or set of laws. In India, the Evidence Act contains an express bar on its applicability to arbitration proceedings.17 There are many differentiating factors between an arbitral proceeding and judicial proceeding. In arbitral proceedings, the overall procedural framework is governed by a combination of pre-agreed institutional or contractual rules, a local arbitration law, and the 'procedural order' issued after the initiation of arbitration by either of the parties.18 The Indian Evidence Act excludes arbitration from its scope.19 Even the decisions of the judiciary are not binding on the arbitral tribunal.20 The Indian Evidence Act in Sec. 19(2) states that the arbitral tribunals are free to agree on a procedure to be followed by the arbitral tribunal for conducting its proceedings.21 Sec. 19(4) says that the tribunal has the power to determine the admissibility, relevance, materiality, and weight of any evidence subject to an agreement to the contrary.22

In such circumstances, how does an arbitral tribunal determine the admissibility of illegally obtained evidence? Even the arbitral rules given by well-known institutions such as SIAC, LCIA, UNCITRAL, etc. does not contain provisions that provide for a procedure to admit or exclude evidence. Instead, the arbitral rules give wide discretion to the tribunals in ascertaining the admissibility relevance, materiality, and weight of the evidence. The arbitral institutions mentioned above have the following provisions:

  1. United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, 2010: Article 27(4) of the states that the tribunal "shall determine the admissibility relevance, materiality and weight of the evidence offered."23
  2. Singapore International Arbitration Centre (SIAC) Arbitration Rules, 2016: Rule 19.2 of SIAC states the tribunal "shall determine the relevance, materiality, and admissibility of all evidence. The Tribunal is not required to apply the rules of evidence of any applicable law in making such determination."24
  3. London Court of International Arbitration (LCIA) Rules, 2020: Rule 22.1(vi) states that a tribunal is free "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; and to decide the time, manner and form in which such material should be exchanged between the parties and presented to the Arbitral Tribunal."25

Even if we take Indian arbitral institutions such as MCIA, we find wide discretion being given to the arbitral tribunals when it comes to evidence.

  1. Mumbai Centre for International Arbitration (MCIA) Rules, 2016: Rule 25.1 states that a turbinal has the power to determine the "admissibility, relevance, materiality, and weight of any evidence, including whether to apply strict rules of evidence or not. The Tribunal shall not be bound to apply any rules of evidence".26

Conclusively, there is no provision in the laws or arbitral rules that mention what kind of evidence is admissible at the arbitral proceeding. Nonetheless, the arbitral tribunals can refer to the International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration which provides for Admissibility and Assessment of Evidence in Article 9. On illegally obtained evidence, the IBA Rules Article 9(3) states that "the Arbitral Tribunal may, at the request of a Party or on its own motion, exclude evidence obtained illegally".27 The IBA Review Task Force 2020 has not set out the specific circumstances in which such evidence should be excluded. This is because there was no clear consensus on the issue.28 Indeed, it seems impossible to determine categories of illegally obtained evidence that must be excluded or included. In the past, arbitral tribunals considered various aspects such as

  1. whether the party offering the evidence was involved in the illegality, whether allowing the evidence was proportional,
  2. whether the evidence was material and outcome-determinative,
  3. whether the evidence had entered the public domain through public leaks, and the clarity and severity of the illegality.29

The nature of arbitration practice and lack of law and precedent has resulted in contradictory arbitral awards on the issue of admissibility of illegally obtained evidence. That being said, the tribunals are urged to strive to form an accurate picture of the case based on material facts, but it should not incentivise illegal activities.30

Before making a decision on the admissibility of illegally obtained evidence, an arbitral tribunal should seek to answer three questions31:

  1. Has the evidence been obtained unlawfully by a party who seeks to benefit from it?
    • It has been argued that the tribunal should presume that the unlawfully obtained evidence is inadmissible.32
    • However, if illegally obtained evidence is presented to the tribunal through the hands of a disinterested party, then such evidence should be considered prima facie A disinterested party is "one who is not a party to the proceedings and stands to gain or lose nothing from its outcome."33
    • If a party seeking to benefit from unlawfully obtained evidence comes with clean hands, the evidence will likely pass this question. The doctrine of 'clean hands' is a well-known principle in the field of arbitration that says no party ought to be profited from its own misconduct.34
  2. Does public interest favour in rejecting the wrongfully disclosed document as inadmissible?
    • The Tribunal has to determine the admissibility depending on the public policy of the arbitral seat where the award will get recognition and all relevant jurisdictions where the award ought to be enforced.
    • 34(2) of the UNCITRAL Model Law, which is adopted my majority of states, states that an award can be set aside if it is in contradiction with the public policy of the state of the seat of the arbitral tribunal.35
    • Tribunals should take into account public policy considerations, such as legal professional privilege, diplomatic immunity and inviolability.36
  3. Does the interest of justice favour the admission of the wrongfully disclosed document?
    • The arbitral tribunals need to strike a balance between the several principles and interests that may conflict depending on the specific facts of each given case. Principles include the requirement to carry out the tribunal's duties in a fair and just manner that yields a ruling that is obviously correct, as well as balances the interests of procedural integrity and equality of arms principle.37

Additionally, the tribunals should also consider two important factors while determining the admissibility of illegally obtained evidence:

  1. Principle of good faith, &
  2. Principle of equality of arms.

The principle of good faith in the arbitral process stems from the agreement to arbitrate.38 Even the Preamble to the IBA Rules on the Taking of Evidence in International Arbitration mentions that "the taking of evidence shall be conducted on the principles that each Party shall act in good faith".39 The tribunal has to decide whether including the illegally obtained evidence would contravene the principle of good faith or not. Now, coming to the 'principle of equality of arms.' It means that the tribunal has to ensure protection of the equality of the parties and it requires tribunals to enforce an equality of arms between them.40 It is closely related to the principle of fairness that every adjudicating body sought to implement.41 This principle mandates that both parties in a proceeding have to be given a reasonable opportunity to present their arguments which includes evidence but this is subject to not placing the other party at a substantial disadvantage with regards to the other party.42

There are various arbitral awards that have decided on issues of admissibility of illegally obtained evidence. There are mainly two approaches followed: exclusionary and inclusionary.43 In exclusionary approach, the tribunals exclude the illegally obtained evidence by not taking it on record. Whereas, in inclusionary approach, the tribunals admit the illegally obtained evidence. It should be noted that the focus of this chapter is on arbitral awards from all around various jurisdictions.

In Methanex Corp v. USA,44 the claimant's investigator engaged in 'dumpster diving' and its competitors' files were purloined. The tribunal said that the evidence had been obtained unlawfully by multiple acts of trespass over many months and admission of that evidence would have been in violation of a general duty of good faith imposed by the UNCITRAL Rules and, indeed, incumbent on all who participate in international arbitration, without which it cannot operate.45 Both the parties owed a duty "to conduct themselves in good faith during these arbitration proceedings and to respect the equality of arms between them, the principles of 'equal treatment' and procedural fairness also being required by Article 15(1) of the UNCITRAL Rules". Resultantly, the tribunal refused to accept the impugned documents as evidence.

In Caratube v. Kazakhstan,46 the claimant attempted to introduce eleven documents that had been made publicly available on the Internet as a consequence of a hacking of the Kazakhstan government's IT system. Hackers had uploaded about 60,000 documents onto a website known as "Kazakhleaks". The tribunal allowed the admission of all non-privileged leaked documents but excluded from the record all illegally leaked privileged documents finding that the tribunal must afford privileged documents the utmost protection.47

In ConocoPhillips v. Venezuela,48 the respondent, after the award was rendered, wanted to rely on evidence leaked by WikiLeaks. Such evidence could be classified as illegally obtained evidence even though it was already in public. Most of the arbitrators who were empanelled refused to re-open the case and determine the matter as only execution of the award was pending. Nonetheless, one arbitrator whose name is Prof. Georges Abi-Saab expressed his dissent by saying that the respondent produced strong evidence, which was pivotal to the arbitral proceedings. As a result, he observed in his dissenting view that the dispute should be re-opened on public policy grounds because ignoring its existence and relevance would lead to a travesty of justice.49

5. JUXTAPOSING THE PRACTICES FOLLOWED IN INDIAN JUDICIARY AND ARBITRATION

As seen earlier, the Indian judiciary is in favour of admitting the illegally obtained evidence. On the other hand, the arbitral tribunals have conflicting awards on the same issue. The Indian judiciary follows the principle of stare decisis. This has led to uniform judgements concerning admissibility of illegally obtained evidence. This is not the case with arbitral tribunals. In arbitration, the tribunals are not bound to any other judicial decisions or arbitral awards. The concerns of enforceability and recognition of award of course remain. However, Indian judiciary has adopted a non-interventionist approach in recent times through various landmark judgements. It is highly unlikely that the Indian judiciary will deny recognition or enforcement of an award merely because the arbitral tribunal chose to admit or deny the admission of illegally obtained evidence. As arbitration is a creature of consensus,50 the tribunals swear allegiance to the arbitration agreement. This means that the admissibility of illegally obtained evidence depends on the agreement between the parties, the rules or laws chosen by the parties to govern the arbitration proceedings, etc. As noted earlier, most rules and procedural laws give arbitral tribunals the freedom to decide on the admissibility of illegally obtained evidence. Now, it is up to the arbitrators to decide whether they want to apply the exclusionary rule or inclusionary rule.51 In India, most arbitrators are erstwhile members of the judiciary. So, even if the judgments of the judiciary are not binding on the tribunal, the arbitrators favour the jurisprudence adopted by the Indian judiciary.

A glaring difference between the practices of the judiciary and arbitration is that the judiciary admits the illegally obtained evidence because there is no statutory or constitutional bar to exclude it. Such a reasoning is shallow and might not take into consideration various factors that the arbitral tribunals take usually. A much better position is taken in arbitration where tribunals would consider multiple factors such as public policy, interest of the party bringing in such evidence, good faith, fairness, etc. The illegally obtained evidence brought before the tribunal is scrutinized to a higher degree and it may be denied admissibility if it contravenes any of the abovementioned factors. A stark contract can be seen on the other side, where the judiciary considers the illegally obtained evidence without taking factors such as interest of the parties involved, equality of arms principle, etc. When the matter is of criminal nature, then the gravity of the situation is worsened as the whole state machinery tries to prove the accused guilty of a crime. Such a proceeding becomes unfair and lopsided when procedural due process is not adhered to by the authorities and courts normalise it by levying nominal fines on the state authorities and admitting the evidence.

Arguments supporting equality of arms and fairness should be considered by the Indian judiciary and the admissibility of illegally obtained evidence should be more scrutinized. The accused or respondent is essentially not kept on the same pedestal with the prosecution or claimant when only one can benefit out of the system at the expense of the other. Such a system needs a change which is long overdue.

6. CONCLUSION

The practices followed by the Indian judiciary rests on only one reason that there is no constitutional or statutory bar on the admissibility of illegally obtained evidence. Hence, the Indian judiciary is in favour of admitting illegally obtained evidence subject to its relevancy to the case. This approach was criticised by the Law Commission itself. The Report recommended the insertion of Section 166A into the Indian Evidence Act, which would grant courts the power to refuse the admission of any illegally or improperly obtained evidence, if the court believed that the nature of the means of gathering the evidence would lead to disruption of the administration of justice. This recommendation of the Commission was not adopted by the Parliament.

However, it is not necessary that such a recommendation is incorporated. The judiciary, like various arbitral tribunals can come up with reasons such as equality of arms principle and fairness principle to refuse the admissibility of illegally obtained evidence. Merely because the statute is silent on the its admissibility, that does not mean that courts cannot be more cautious about this very issue. The arbitral tribunals have been more successful in cases concerning illegally obtained evidence because they decide on its admissibility on case to case basis. Something similar should be followed by the Indian judiciary as well.

Footnotes

1. Dr. Nageshwar Rao, The Indian Evidence Act 30 (LexisNexis 2019).

2. The Indian Evidence Act, 1872, Chapter II, No. 1, Acts of Parliament, 1872 (India).

3. The Indian Penal Code, 1860, §447, No. 45, Acts of Parliament, 1860 (India).

4. S.N. Jain, Admissibility of Illegally Obtained Evidence, 22 JILI 322, 322 (1980).

5. Ashwini Vaidialingam, Authenticating Electronic Evidence: §65B, Indian Evidence Act, 1872, 8 NUJS L Rev 43, 59 (2015).

6. Criminal Procedure Code, 1973, Chapter XII, No. 2, Acts of Parliament, 1974 (India).

7. Benamali v. Emperor ILR (1939) 1 Cal. 210

8. Law Commission of India, 94th Report on Evidence Obtained Illegally or Improperly: Proposed Section 166A, Indian Evidence Act, 1872, (1983).

9. Law Commission of India, 94th Report on Evidence Obtained Illegally or Improperly: Proposed Section 166A, Indian Evidence Act, 1872, 5 (1983).

10. Law Commission of India, 94th Report on Evidence Obtained Illegally or Improperly: Proposed Section 166A, Indian Evidence Act, 1872, 4 (1983).

11. Id.

12. Id.

13. Law Commission of India, 94th Report on Evidence Obtained Illegally or Improperly: Proposed Section 166A, Indian Evidence Act, 1872, 37 (1983).

14. Pooran Mal v. Director of Inspection, [1974] 1 SCC 345.

15. R.M. Malkani v. State of Maharashtra, 1973 AIR 157.

16. Dnyaneshwar v. State of Maharashtra, 2019 SCC OnLine Bom 4949.

17. Indian Evidence Act, 1872, §1, No. 1. Act of Parliament 1872 (India).

18. Ferrari and Rosenfeld, Handbook of Evidence in International Commercial Arbitration: Key Concepts and Issues 289 (Kluwer Law International 2022)

19. Indian Evidence Act, 1872, §1, No. 1. Act of Parliament 1872 (India).

20. Gary Born, International Commercial Arbitration 601 (3rd ed. Wolters Kluwer 2021).

21. Indian Evidence Act, 1872, §19(2), No. 1. Act of Parliament 1872 (India).

22. Indian Evidence Act, 1872, §19(4), No. 1. Act of Parliament 1872 (India).

23. UNCITRAL Rules, 2010, Art. 27(4).

24. SIAC Rules, 2016, Rule. 19.2.

25. LCIA Rules, 2020, Rule. 22.1(iv).

26. MCIA Rules, 2016, Rule 25.1.

27. IBA Rules on the Taking of Evidence in International Arbitration, 2020, Art. 9(3).

28. IBA Review Task Force 2020, 30 (2020).

29. Tobias Zuberbühler, Dieter Hofmann, et al., IBA Rules of Evidence: Commentary on the IBA Rules on the Taking of Evidence in International Arbitration 206 (2nd Ed. Schulthess Juristische Medien AG 2022)

30. Ferrari and Rosenfeld, supra note 18.

31. Cherie Blair and Ema Vidak-Gojkovic, WikiLeaks and Beyond: Discerning an International Standard for the Admissibility of Illegally Obtained Evidence, 33(1) FILJ 235, 241 (2018).

32. Id.

33. Nicaragua v. United States of America, [1986] ICJ Rep 392.

34. Shubham Gandhi, Illegally Obtained Evidence In International Arbitration: Examining The Admissibility, 1 RFMLR 1, 6 (2021).

35. UNCITRAL Model Law, 1885 with amendments as adopted in 2006, Art. 34(2).

36. Cherie Blair and Ema Vidak-Gojkovic, supra note 31.

37. Cherie Blair and Ema Vidak-Gojkovic, supra note 31.

38. Gary Born, International Commercial Arbitration §8.02 (3rd ed. Wolters Kluwer 2021).

39. IBA Rules on the Taking of Evidence in International Arbitration 2020, Preamble.

40. Frédéric G. Sourgens, Kabir Duggal, et al., Evidence in International Investment Arbitration, 246 (Oxford University Press 2018).

41. Fabien Rutz, Admissibility of unlawfully obtained evidence in international arbitration in Switzerland, SAA CAS 1, 8 (2020).

42. Tulip Real Estate and Development Netherlands BV v. Republic of Turkey, ICSID Case No ARB/11/28.

43. Ferrari And Rosenfeld, Handbook Of Evidence In International Commercial Arbitration: Key Concepts And Issues 260 (Kluwer Law International 2022)

44. Methanex Corp v. USA, Final Award on Jurisdiction and Merits.

45. Peter Ashford, The Admissibility of Illegally Obtained Evidence, 85(4) IJAMDM 377, 380 (2019).

46. Caratube v. Kazakhstan, ICSID Case No ARB/08/12.

47. Edna Sussman, Cyber Intrusion as the Guerrilla Tactic: An Appraisal of Historical Challenges in an Age of Technology and Big Data, 20 EAFIA 849, 853 (2019).

48. Conoco Phillips Petrozuata BV v. Bolivarian Republic of Venezuela, ICSID Case No ARB/07/30.

49. Shubham Gandhi, Illegally Obtained Evidence In International Arbitration: Examining The Admissibility, 1 RFMLR 1, 7 (2021).

50. Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1.

51. Ferrari And Rosenfeld, supra note 43.

Tejas is a student of Maharashtra National Law University, Mumbai and Winner of the 2nd Prize of the 9th Ed. of Arb Excel Essay Writing Competition.

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