The Difficulties And Solutions Of The Evidence Production In International Investment Arbitration

Documentary evidence can be regarded as the best form of evidence in international investment arbitration.The document discovery procedure is conducive to the arbitral tribunal to clearly find out the facts of the case and make a justified award.Therefore,the production of documentary evidence has become a key procedure in international investment arbitration.A survey even pointed out that many investment arbitration participants believe that the document discovery process will have a significant impact on the outcome of the case.In recent years,the number of international investment arbitration cases involving evidence discovery procedures has shown an increasing trend,and the number of investment disputes involving China will also increase significantly in the foreseeable future.It can be seen that the document discovery procedure should attract sufficient attention from all participants in international investment arbitration.Therefore,it is necessary to study the procedure.After reading and summarizing the existing papers and cases,we can find out there is still no consensus on the following mentioned issues in the field of international investment arbitration in terms of evidence discovery procedure:whether the third-party held documentary evidence is within the scope of document production? Whether the commercial secrets privilege can be successfully quoted?And whether the politically sensitive information privilege can be successfully cited?This paper aims to study the aforementioned three issues and draw the following conclusions.First,under certain conditions,the arbitral tribunal should support and have a position to support the application for production of documentary evidence held by a third party.There are three conditions that need to be met at the same time,which are,the documentary evidence held by the third party should be under the control of the respondent,the documentary evidence held by the third party should be highly related to the case,and the documentary evidence held by the third party should only be owned by the third party.Second,the current international investment arbitration practice has not yet clearly confirmed the commercial secrets privilege.And the arbitral tribunal is probably satisfied with the current status of practice.If investors want to successfully invoke the commercial secrets privilege,they can take two measures,which are reaching an agreement with the host country on which documents are commercial secrets in advance and applying to the arbitral tribunal for a neutral third party to review confidential documents.Third,international investment arbitration tribunals have adopted a rather strict attitude towards claiming political sensitive information privilege and there have been no cases in which host countries have successfully invoked political sensitive information privilege.Political sensitivity information is put on hold unfortunately,probably because the international investment arbitral tribunal is consciously biased towards the investor side.The bias of the arbitral tribunal is mainly based on the advantageous position of the host country in the international investment arbitration and the domestic law of a country should not be considered preceding international law.If the host country wants to successfully protect politically sensitive information,it cannot invoke political sensitive information privilege only in accordance with domestic law without analyzing it in accordance with international law,and only declare that the documents requested by investors enjoy political sensitive information privilege without providing any interpretation,and only reference to political sensitive information privilege for all documents as a whole without explaining each document individually.At the same time,the host country should actively invoke other reasons,including that the documents requested by the investor for disclosure are publicly available,not important,or relevant,or that the investor’s request for disclosure of documentary evidence will impose an unreasonable burden on the host country as the reason to objections to the discovery of evidence to increase the probability of rejection of applications for disclosure of confidential documents.