On The Evidentiary Privilege Of The ICSID

Evidentiary privilege is the right to retain certain documents or evidence during legal proceedings,including the right to prevent the disclosure of such information.Its essence is to protect certain public interests,at which point the value of secrecy or non-disclosure of the evidence is more valuable than the discovery of the truth.The ICSID tribunal shall not order a party to produce or accept information protected by a privilege of evidence,such evidence of malicious disclosure by others should not be accepted.The evidentiary privilege is an exception to discovery.The parties enjoying the special privilege of evidence will be exempt from discovery.The evidentiary privilege right of ICSID is different from the evidentiary privilege right in international commercial arbitration.Evidentiary privilege in ICSID exist the following problems: first,the nature of the evidentiary privilege is unknown.The vast majority of countries take the civil law system and the common law system as the boundary and think that the special right of evidence belongs to the category of procedural law and the category of substantive law respectively.Second,the current ICSID arbitration tribunal to determine the right to the evidentiary privilege is chaotic in practice.The reason for this is that the international commercial arbitration tribunal and scholars have put forward many solutions on how to identify the right of the evidentiary privilege,such as domestic law,the principle of most close relations,the most favored nation principle and so on.However,these schemes have corresponding shortcomings and are difficult to be widely recognized internationally.Third,the lack of "explicit provisions" of the evidentiary privilege in ICSID is the root cause of the first and second problems,The inability to comply is also the primary reason that ICSID evidence privilege needs to be resolved.The Washington convention only stipulates the application of substantive law and procedural law,while the ICSID arbitration procedure rules do not mention the rule of the evidentiary privilege.As an important basis for the settlement of investment disputes in ICSID,the investment protection agreement does not stipulate the issue of the evidentiary privilege.Therefore,the impossibility of ICSID evidentiary privilege is an urgent problem to be solved.Improving the evidentiary privilege in ICSID is conducive to maintaining international public order,stabilizing specific social relations and respecting the legitimate rights and interests of the parties concerned,as well as contributing to solving the crisis of legality of ICSID.First of all,it is necessary to recognize the nature of the evidentiary privilege.Through results-oriented method,It is concluded that the privilege of evidence has the dual attributes of procedural law and substantive law.Article 42-44 of the Washington Convention provides a legal basis for the resolution of "legal lacuna".If there is no provision in the investment agreement or the bilateral investment agreement for the evidentiary privilege,the rules of the evidentiary privilege in ICSID convention and ICSID arbitration rules shall be applied.The evidentiary privilege rule in the ICSID is a supplementary.The ICSID tribunal shall follow the principles of autonomy of will,fairness and justice,and protection of public interest in determining the evidentiary privilege.ICSID should introduce these types of the evidentiary privilege: attorney-client privilege,public order privilege,trade secret privilege and non-prejudice privilege.The arbitral tribunal shall decide the exemption right of evidence in two stages.The ICSID tribunal shall allow the obligee to waiver the evidentiary privilege,but the malicious disclosure of the evidentiary privilege does not constitute a waiver of the evidentiary privilege.ICSID should also stipulate that the evidentiary privilege is not absolute,and an exception to the evidentiary privilege will occur when the interests protected by the disclosure documents take precedence over the interests protected by the evidentiary privilege.In addition,as far as our country is concerned,our ancient times had the principle of "Families keep secrets" similar to the contemporary evidentiary privilege.However,since modern times,the evidentiary privilege in mainland China has been in the state of "missing".In the context of the default attitude of ICSID to the evidentiary privilege,it is necessary to fill the gap of the evidentiary privilege in the domestic law in order to safeguard the legitimate rights and interests of China in ICSID arbitration.