"Loyauté de la preuve" and fairness in the taking of evidence in international arbitration: a comparative perspective

Presentation

The Club de l'arbitrage welcomes you to a discussion about "loyauté de la preuve" and fairness in the taking of evidence in international arbitration: a comparative perspective

For decades, “la loyauté de la preuve”, which may roughly be translated as fairness in the taking of evidence, marked a clear boundary in French civil procedure. Evidence obtained by ruse or any other disloyal means was routinely excluded in order to safeguard the dignity of justice. However, two landmark rulings of the French Court of Cassation on 22 December 2023 fundamentally reshaped this landscape, by introducing a new analytical framework that aligns the treatment of evidence obtained disloyally with evidence obtained illicitly.

This shift has introduced a new proportionality test. The French courts may now admit evidence obtained by disloyal means, where that evidence is considered essential to a party’s right to prove its case and the infringement of the other rights involved is proportionate to the aim pursued.

What are the solutions adopted by arbitral tribunals, parties, counsels and experts and how might they be influenced according to the legal culture and the applicable law?

Join us as we examine the recent impacts of these developments in French law, and debate whether, in international arbitration law, the duty of procedural fairness is being sacrificed on the altar of the right to prove one’s case.

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A networking cocktail will follow and you are kindly invited to register to the APCEF event which will take place in the same room and attend the evening cocktail at 8.