A hacked email. A privileged document sought in disclosure. A rehearsed witness. Where should an arbitral tribunal draw the line and how does it assess admissibility and appropriate conduct?

At the Bucharest Arbitration Days, our partner Jurgita Petkutė moderated a panel on Admissibility, Privilege and Ethical Integrity in Evidence. Together with Genevieve Poirier, Mihnea Galgotiu-Sararu, Eveli Lume and Alejandro I. Garcia, she explored how tribunals can respond when evidence, privilege or counsel conduct is called into question.

When assessing illegally obtained evidence, tribunals often consider:

• whether the party relying on the evidence was involved in obtaining it illegally
• the proportionality as well as severity of the breach
• the relevance and materiality of the evidence
• whether the information is already in the public domain

Legal professional privilege raises an additional challenge. Common law and civil law traditions offer different levels of protection which may create an uneven playing field between parties. While CJEUcase law provides valuable guidance, it does not resolve every potential conflict. Tribunals need a flexible procedural toolkit to address any attempts to abuse the evidentiary process. Depending on the circumstances, possible responses may include redactions, cost sanctions or measures addressing counsel conduct.

Many thanks to Crina Baltag, Cosmin Vasile, Ștefan Deaconu, Cosmina Feuer, Sorina Olaru and everyone involved in organising such a valuable conference for the arbitration community.