New IBA rules on taking of evidence in international arbitration
The IBA Rules include the admissibility and evaluation of evidence and the literal gathering of evidence. They provide the tribunal considerable discretion in terms of which evidence to consider and how to assess it. The IBA Rules do, however, include a list of situations in which the arbitral tribunal must – or may – omit evidence. This is true, for example, when there are irrelevant bits of evidence or when there are strong cases of secrecy and sensitivity.
The International Bar Association's Rules on the Admissibility of Evidence in International Arbitration were first published in 1999 and then updated in 2010. The IBA Rules on the Taking of Evidence in International Arbitration are a nine-article soft law instrument. Their goal is to make the evidence-gathering process more efficient by augmenting laws, institutions, and ad hoc rules in international arbitration. These are typically not explicit enough to grasp the wide range of issues that might emerge throughout the procedure.
The International Bar Association issued its updated Regulations on the Taking of Evidence in International Arbitration (“IBA Rules”) on February 17, 2021, to replace the former rules from 2010. Except as otherwise agreed, the 2020 IBA Rules will apply to all arbitrations wherein the parties agree to apply the IBA Rules after December 17, 2020, whether as part of their arbitration agreement or during the arbitration.
The modifications are minor and gradual, as described below.
The 2020 update
The current version is more of a targeted update of the IBA Rules rather than a complete rewrite. The drafters have refrained from making significant changes.
- The parties may now apply the IBA Rules "in whole or in part" as provided in Article 1(2) of the 2020 IBA Rules.
- Cybersecurity and Data Protection (Article 2.2(e))
Cybersecurity and data privacy was added to the list of evidential concerns recommended to be considered between the arbitral tribunal and the parties during their initial evidentiary consultation in the 2020 IBA Rules.
- Documents (Article 3); the document creation process is further streamlined by the 2020 IBA Rules, which are as follows.
A new sentence has been added to the conclusion of Article 3(5), stating that parties may reply to document production concerns if the tribunal so directs. Article 3.12 of the 2020 IBA Rules currently reflects a consensus that documents submitted in response to a document request are not part of the evidentiary record and do not have to be translated into the language of the arbitration proceedings.
- Witnesses of Fact (Article 4)
Article 4(6) of the 2020 IBA Rules has now been amended to clarify that second-round witness statements may cover "new factual changes that could not have been addressed in a prior Witness Statement," whether or not alluded to in another party's previous submissions.
- Hearing on Evidence Notably, the newly added paragraph 2 of Article 8 of the 2020 IBA Rules of Evidence allows for virtual hearings, which became the new standard during the COVID-19 epidemic. In addition, a newly added rule authorises the arbitral panel to reject evidence collected unlawfully in Article 9 potentially.
The IBA Rules were initially developed in 1999 to codify an international best practice for gathering evidence in international arbitration procedures. They have subsequently become practically universal in their usage by parties and arbitral tribunals, influenced by practices in civil law and common law nations. The revised IBA Rules make just minor revisions. Nonetheless, the change is sensible and necessary. Given the extensive application of the IBA Rules, the number of affected arbitration proceedings will be enormous in any case.
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