Journal Article

The Admissibility of Evidence in ICSID Arbitration: Considering the Validity of WikiLeaks Cables as Evidence

Jessica O. Ireton

in ICSID Review - Foreign Investment Law Journal

Volume 30, issue 1, pages 231-242
Published in print February 2015 | ISSN: 0258-3690
Published online December 2014 | e-ISSN: 2049-1999 | DOI: https://dx.doi.org/10.1093/icsidreview/siu029
The Admissibility of Evidence in ICSID Arbitration: Considering the Validity of WikiLeaks Cables as Evidence

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  • Company and Commercial Law
  • Settlement of Disputes

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This article examines the admissibility of WikiLeaks diplomatic cables as evidence in international arbitral tribunals. Following the ICSID Tribunal's recent Decision in ConocoPhillips v Venezuela, Venezuela challenged the Decision utilizing WikiLeaks diplomatic cables containing confidential communications between ConocoPhillips' counsel and representatives from the US Embassy. This raises significant questions regarding what types of evidence are admissible in arbitral proceedings. Traditional international legal principles would point to such diplomatic communications being clearly inadmissible. However, the question is far less clear in a transnational arbitration, where the tribunal has the final authority over admitting evidence without being bound by international law. This article begins by considering the treatment of such evidence under international legal concepts and cases. It will then examine how such evidence has been treated by tribunals thus far within the developing transnational legal order. It will conclude by postulating how future ICSID tribunals might treat the admissibility and authenticity of WikiLeaks diplomatic cables.

Journal Article.  5631 words. 

Subjects: Arbitration ; Company and Commercial Law ; Settlement of Disputes

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