Do we need an exclusionary rule in international arbitration?

Abstract

A common aspect of modern adjudicatory dispute resolution procedures is that a final decision is issued after the production and analysis of evidence. As a consequence, various domestic legal 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 these same domestic exclusionary rules in international arbitrations when faced with evidence obtained by illegal or otherwise questionable means. However, the application of exclusionary rules created in domestic systems not only may not be compatible with international arbitrations, but it might also go against the very policy considerations that led to the creation of these exclusionary rules. Adjudication; evidence; exclusionary rule; international arbitration; comparative law; Brazilian law; American Law.