Exclusionary Rules of Evidence in International Arbitration

Abstract

‘The world isn’t fair, Calvin.’
‘I know Dad, but why isn’t it ever unfair in my favour?’

The concept of ‘exclusionary rules of evidence’ originates from common law. It stemmed out of the need to protect the jury from inappropriate evidence, with the courts having a degree of discretion as to what evidence should be included and excluded, albeit this power is rarely exercised in practice today. Although civil law jurisdictions are said not to have an equivalent concept, they do have principles that yield a similar effect in practice. Take, for example, rules on legal privilege. In common law, privilege pertains to the documents themselves. By contrast, in civil law systems, privilege is, first and foremost, a duty of confidentiality imposed on the lawyer not to reveal certain evidence. Therefore, although the legal systems approach the issue from different angles, the result is the same: the evidence is either directly excluded from the record or should never be there to begin with.