The Use of Evidence Obtained Through a State’s Special Antitrust Powers in Investment Arbitration

Abstract

This chapter explores the use of evidence obtained by states in investment arbitration. In particular, it examines whether a state may use information it obtains through special powers of supervision, investigation and seizure granted to the antitrust agency, to defend itself against an investor’s claim in an investment arbitration. The chapter finds that such use of a state’s special powers constitutes a misuse of power under domestic law and a violation of due process in investment arbitration. Further, the treatment of a state as a single body for the purpose of establishing standing for international claims, does not entitle the state to blur domestic divisions of state powers to allow a special power to be used in a way that would contradict its intended purpose under domestic law. States should use the proper procedure for obtaining documents in an international arbitration: document production.