Witness Intimidation, Tampering and Other Related Abuses of Process in Investment Arbitration: Possible Remedies Available to the Arbitral Tribunal

Abstract

This articles argues that resort to witness intimidation and/or tampering in international investment arbitration by disputing parties as a tactic to gain litigation advantage over their opponent does not only amount to a breach of the obligation to arbitrate in good faith, but also undermines the integrity of the arbitral process as a rule-based dispute settlement mechanism. Although the constituting instruments of the arbitral tribunal might not contain an explicit provision on the tribunal's powers to deal with witness intimidation, nonetheless the tribunal can rely on its inherent powers as a judicial body to punish the recalcitrant party, and may impose a number of sanctions such as interim measures of protection, refuse to admit evidence procured with improper means, draw adverse inferences, award monetary damages or move the seat of the arbitration to a neutral venue.