Key updates to the IBA Rules on the Taking of Evidence in International Arbitration

INTERNATIONAL ARBITRATION UPDATE

Key updates to the IBA Rules on the Taking of Evidence in International Arbitration

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Arguably in a sign of their success, for the first time since 2010, the International Bar Association's Rules on the Taking of Evidence in International Arbitration have been updated.

The updates (formally released on 15 February 2021) seek to further streamline this commonly incorporated (and binding once incorporated) “soft law” instrument which aims to fill gaps left by institutional rules concerning evidence in international arbitration as well as modernising and future-proofing them.

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Key updates regarding technology: Clarification on the definition of ‘Remote Hearing’ “‘Remote Hearing’ means a hearing conducted, for the entire hearing or parts thereof, or only with respect to certain participants, using teleconference, videoconference or other communication technology by which persons in more than one location simultaneously participate.”

Tribunal may order a ‘Remote Hearing’ “At the request of a Party or on its own motion, the Arbitral Tribunal may, after consultation with the Parties, order that the Evidentiary Hearing be conducted as a Remote Hearing.“ (Addition to Article 8) Cybersecurity and data protection “The consultation on evidentiary issues may address the scope, timing and manner of the taking of evidence” including “the treatment of any issues of cybersecurity and data protection.” (Update to Article 2, Rule 2)

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Key updates regarding documents:

- There is no obligation to produce multiple copies of documents which are “essentially identical”.

- Documents produced in response to a Request to Produce need not be translated.

- Any foreign language documents submitted to the Tribunal must be translated (Article 3, Rule 12)

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Key update regarding Witnesses of Fact and Experts:

Tribunals may grant a party permission to submit “revised or additional” Witness Statements or Expert Reports, including statements from people not previously named as factual witnesses, so long as any such revisions or additions respond only to: (a) matters contained in another Party’s Witness Statements, Expert Reports or other submissions that have not been previously presented in the arbitration.; or (b) new factual developments that could not have been addressed in a previous Witness Statement or Expert Report.

(Article 4, witnesses of fact, and Article 5, experts) SWIPE

Key updates regarding the powers and authority of the Tribunal:

- The updated Rules clarify the Tribunal’s exclusive authority to determine questions concerning requests for information from Tribunal-appointed experts. (Article 6) - “The Arbitral Tribunal may, at the request of a Party or on its own motion, exclude evidence obtained illegally.“ (Article 9)

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Common law v civil law approach: As paragraph 1 of its Preamble continues (unchanged) to read, “[t]hese IBA Rules… are intended to provide an efficient, economical and fair process for the taking of evidence in international arbitrations, particularly those between Parties from different legal traditions".

The updated IBA Rules follow the release in late 2018 of the Prague Rules on the Taking of Evidence in International Arbitration which aimed to provide an option for those parties more familiar with the approach of civil law tradition jurisdictions concerning evidence.

It remains to be seen whether the Prague Rules can gain ground on the prevalence of the IBA Rules.

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Source

IBA Rules on the Taking of Evidence in International Arbitration Link: bit.ly/IBArulechanges

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Contact

Ryan Cable Senior Associate, London ryan.cable@signaturelitigation.com

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