Illegally obtained electronic evidence in arbitration proceedings

October 6, 2025

1. Overview of Electronic Evidence in Arbitration Proceedings

Under civil procedure law, in Clause 1, Article 94 of the Civil Procedure Code 2015 (CPC 2015), electronic data is listed as a source of evidence. However, regarding the legal basis for the Tribunal’s authority to collect evidence under Clause 1, Article 46 of the Law on Commercial Arbitration 2010 (LCA 2010), there are no specific provisions guiding the standards by which the Tribunal may consider, evaluate, and admit evidence in general, and electronic evidence in particular. Nevertheless, Article 11 of the Law on Electronic Transactions 2023 provides that: “The evidentiary value of a data message shall be determined based on the reliability of the manner in which the message was generated, sent, received, or stored; the manner of ensuring and maintaining the integrity of the message; the method of identifying the originator, sender, and recipient of the message; and other relevant factors.” In civil proceedings, to be admissible as evidence, electronic data must be collected in accordance with the procedures prescribed by the CPC 2015.

To date, the procedures for admitting electronic evidence in arbitration proceedings remain unclear. During copying, storage, or other handling, data messages may be altered, reducing their reliability, and the lack of clear regulations thus creates practical difficulties in proceedings. In addition, data messages submitted by parties for the Tribunal’s consideration and admission as evidence may have been collected through illegal acts, potentially by third parties or even by the disputing parties themselves.

2. Grounds for Admitting Illegally Obtained Electronic Evidence in Arbitration Proceedings

2.1. Admitting Electronic Evidence Obtained Through Illegal Acts to Ensure the Objectives of Arbitration Proceedings

In arbitration proceedings, when considering the possibility of admitting electronic evidence obtained through illegal acts, the primary and fundamental requirement is the evidentiary value of such evidence for the specific case. If the evidentiary value is significant, the evidence merits consideration. The Arbitral Tribunal (the Tribunal) may rely on this evidentiary value to decide whether to admit the evidence before addressing the more complex issue of the illegality of its collection.

Although evidentiary value is the priority criterion, the admission of electronic evidence is also influenced by its inherent risks. Electronic evidence is highly dependent on information technology and is inherently susceptible to alteration, manipulation, distortion, or destruction. Moreover, distinguishing originals from copies, or proving tampering, is extremely difficult. Therefore, the authenticity of electronic evidence is a fundamental factor for the Tribunal in determining whether to admit the evidence.

To ensure reliability, the evidentiary value of a data message must be assessed based on the reliability of the method of its creation, storage, or transmission, and the manner of ensuring and maintaining its integrity. If electronic evidence ensures reliability and authenticity, while also being relevant and material to the case, it should be admitted. Documents cited from the Wikileaks disclosure in the Conoco Phillips v. Venezuela case are a typical example of this approach. Determining authenticity may require the involvement of information technology experts to assist the dispute resolution body.

2.2. The Admission of Electronic Evidence Obtained Through Illegal Acts Is Not Contrary to Current Law and Is Consistent with the Authority of the Arbitral Tribunal

(1) The Collection of Electronic Evidence Obtained Through Illegal Acts Is Not Contrary to Current Evidentiary Regulations

Upon reviewing procedural principles and regulations on electronic evidence, the admission by the Arbitral Tribunal (the Tribunal) of electronic evidence obtained through illegal acts is fundamentally not inconsistent with relevant Vietnamese law. Regarding the fundamental principles of civil procedure, Vietnamese law aligns closely with the legal systems of civil law countries, including: party autonomy, the burden of proof, adversarial investigation, oral hearings, public hearings, and fair trial. In addition to these general principles, Vietnamese law also recognizes fundamental principles specifically related to evidence in civil proceedings, namely:

Principle of relevance of evidence: Evidence is only admissible if it is relevant to the facts of the case and useful for the Court or Tribunal in determining the case.
Principle of direct engagement: Direct interaction between the Court or Tribunal and the parties, including in the receipt of evidence.
Principle of free evaluation of evidence: The Court or Tribunal has the right and duty to freely assess evidence after its collection is completed.

(2) The Admission of Electronic Evidence Obtained Through Illegal Acts Is Consistent with the Authority of the Arbitral Tribunal

The core purpose of submitting evidence in arbitral proceedings is to provide the Tribunal with a sufficient basis to ascertain the truth. Although rules on evidence in international arbitration proceedings are often limited, the general principle grants the Tribunal the discretion to decide on the admissibility of evidence. This discretionary authority of the Tribunal is widely recognized at both international and national levels:

Internationally: Relevant international legal sources do not prescribe detailed rules on the admissibility of illegally obtained evidence but vest the decision-making authority in the Tribunal. For example, Article 27.4 of the UNCITRAL Arbitration Rules 2010 provides that the Tribunal shall determine the admissibility, relevance, materiality, and weight of evidence. Similarly, Article 34.1 of the ICSID Arbitration Rules designates the Tribunal as “the judge of the admissibility of any evidence submitted and of its probative value.” Most national legal systems following the UNCITRAL Model Law similarly grant the Tribunal the authority to decide on the admissibility, relevance, materiality, and weight of evidence, including evidence related to illegal acts.
Vietnam: Article 46 of the 2010 Law on Commercial Arbitration (LCA 2010) regarding the Tribunal’s authority to collect evidence does not require the Tribunal to comply with the evidentiary rules applied in courts. This affirms the Tribunal’s discretion to determine whether to admit and consider evidence in commercial arbitration. However, the admission of illegally obtained electronic evidence must consider the ground for annulment under point (d), Clause 2, Article 68 of LCA 2010: an award may be annulled if the evidence on which the Tribunal relied is forged. The distinction between forged evidence and illegally obtained evidence is important; courts only consider forged evidence if there is proof that it is related to the issuance of the award and affects the award’s objectivity and fairness.

=> Evidence obtained through illegal acts may not necessarily affect its authenticity and probative value in arbitral proceedings. Since Vietnam’s legal framework does not entirely prohibit the Tribunal from admitting evidence acquired through unlawful means, such evidence may still be considered on a case-by-case basis within the arbitral process.

2.3. The admission of electronic evidence obtained through unlawful acts contributes to upholding the fundamental principles of Vietnamese law in arbitral proceedings.

Acceptance of electronic evidence obtained through unlawful acts plays a crucial role in upholding the fundamental principles of Vietnamese law in arbitral proceedings, maintaining fairness and the parties’ right to be heard.

Firstly, it should be noted that an arbitral award may be annulled by a court if it is deemed contrary to the fundamental principles of Vietnamese law under point (d), Clause 2, Article 14 of Resolution 01/2014/NQ-HĐTP. Regarding evidence, the legality of evidence collection must be assessed based on Article 4 of the 2010 Law on Commercial Arbitration (LTTTM). Clause 2, Article 4, LTTTM 2010 requires arbitrators to act independently, impartially, and in compliance with the law, with the primary goal of ensuring that all parties have a fair opportunity to present their case. This requirement is directly linked to the principle of the right to a fair hearing—a core principle in most legal systems.

Secondly, the acceptance of evidence obtained through unlawful acts does not, in principle, violate Vietnamese arbitration procedural law. When parties have the right to submit evidence, the arbitral tribunal has the corresponding responsibility to ensure that this right is respected. Thus, by allowing the consideration of evidence provided by the parties, including evidence collected unlawfully, the tribunal actively contributes to safeguarding the fundamental principles embedded in Vietnamese law. Additionally, the tribunal must ensure equality of rights and obligations among the parties during proceedings pursuant to Clause 3, Article 4, LTTTM 2010, particularly regarding equal opportunity in presenting and evaluating evidence.

3. Bases for refusing electronic evidence obtained through illegal acts in arbitration proceedings

3.1. Electronic evidence is an object protected by law

(1) Refusal of evidence related to state secrets: The Arbitral Tribunal (AT) must exercise caution and consider evidence connected to public policy.

IBA Rules: According to point (f), paragraph 2, Article 9 of the IBA Rules on the Taking of Evidence in International Arbitration (2020), the AT may exclude documents due to “politically or institutionally sensitive grounds (including evidence classified as secret by a government or international organization) as deemed necessary by the AT.”
Risk of annulment/non-enforcement: Admitting illegally obtained electronic evidence related to the secrets of any state or international organization may lead to the risk of annulment or non-recognition and non-enforcement of the award in other jurisdictions.

(2) Refusal of evidence related to legally privileged information: Documents obtained under legal privilege may be excluded to maintain fairness in the arbitral proceedings.

Impact on fairness: Evidence obtained under legal privilege can create significant disadvantages and negatively affect a party’s rights, undermining fairness and equality in the arbitration process.
International practice: In one dispute, the Arbitral Tribunal excluded confidential communications between a lawyer and a party, even though they had high evidentiary value, because they could prejudice that party’s rights.
Compatibility with Vietnamese law: According to paragraph 3, Article 4 of the 2010 Law on Commercial Arbitration (LTTTM 2010), the Tribunal has the duty to ensure equality among parties. Failure to uphold this principle may lead to annulment of the award under point (d), paragraph 2, Article 68 LTTTM 2010.

3.2. Limitations in proving the bad faith of the party submitting electronically obtained evidence illegally

In international arbitration practice, documents obtained through illegal acts by the submitting party are generally not admitted on the basis that the submitter acted in bad faith or with “unclean hands.” However, for electronic evidence obtained via cybercrime, establishing a connection between the disputing parties and the illegal act is challenging, as cybercrime is often covert and the perpetrators difficult to trace. Nevertheless, the arbitral tribunal should not automatically exclude illegally obtained electronic evidence; instead, it should assess both the nature of the evidence and the conduct of the parties. During this evaluation, the tribunal is recommended to bear the responsibility of substantiating any doubts regarding the parties’ involvement in the unlawful evidence collection.

4. Conclusion

The acceptance of electronic evidence obtained through illegal acts in arbitration proceedings can assist the arbitral tribunal in establishing the facts of the case. However, admitting such evidence also carries significant risks, including potential unfairness in the proceedings and the possibility of encouraging parties to use unlawful means to collect evidence.

To address this issue systematically, paragraph 3 of Article 9 of the IBA Rules on the Taking of Evidence in International Arbitration provides that “the arbitral tribunal may, at the request of a party or on its own initiative, exclude evidence obtained through illegal acts.” Vietnamese arbitration centers may consider incorporating the IBA’s recommendations and guidance on evidence into their own arbitration rules. This would better align with international arbitration practice and promote the development of arbitration activities in Vietnam in the near future.

5. Mechanisms for Resolving Disputes through the Bigboss International Arbitration Center (BBIAC)

To resolve a dispute through commercial arbitration at BBIAC, clients may insert one of the following two clauses into their contracts:

5.1. Model Arbitration Clause

Additionally, the parties may supplement the clause with:

(a) The number of arbitrators shall be [one or three].

(b) The seat of arbitration shall be [city and/or country].

(c) The governing law of the contract shall be [ ].*

(d) The language of the arbitration shall be [ ].**

Notes:

* Applicable only to disputes involving a foreign element.

** Applicable only to disputes involving a foreign element or disputes where at least one party is an enterprise with foreign invested capital.

5.2. Model Arbitration Clause Applicable to Expedited Procedure

“Any dispute arising out of or in connection with this contract shall be settled by arbitration at the BIGBOSS International Commercial Arbitration Center (BBIAC) in accordance with the Arbitration Rules of Procedure of this Center. The Parties agree that the arbitration proceedings shall be conducted under the Expedited Procedure stipulated in Article 37 of the BBIAC Arbitration Rules of Procedure.”

Additionally, the parties may supplement the clause with:

(a) The seat of arbitration shall be [city and/or country].

(b) The governing law of the contract shall be [ ].*

(c) The language of the arbitration shall be [ ].**

Notes:

* Applicable only to disputes involving a foreign element.

** Applicable only to disputes involving a foreign element or disputes where at least one party is an enterprise with foreign invested capital.

Contact 0979 133 955 for consultation!