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New IBA Rules on the Taking of Evidence
- May 27, 2021
- Latest Journal
Authors: Dr. Jonatan Baier, Corina Moschen.
On 17 December 2020, the International Bar Association (“IBA”) adopted the revised IBA Rules on the Taking of Evidence in International Arbitration (“IBA Rules”), which supersede those of 2010. The revised rules will apply to arbitrations in which the parties agree to apply the IBA Rules after 17 December 2020, whether as part of new arbitration agreements or in determining the rules of procedure in a pending or future arbitration.
The IBA Rules reflect procedures in use in many different legal systems. They may be particularly useful when the parties come from different legal cultures and whose understanding of procedures is divergent. The IBA issued these Rules as a resource to parties and to arbitrators to provide an efficient, economical and fair process for the taking of evidence in international arbitration. The Rules provide mechanisms for the presentation of documents, witnesses of fact and expert witnesses, as well as the conduct of evidentiary hearings. They are designed to be used in conjunction with, and adopted together with, institutional, ad hoc or other rules or procedures governing international arbitrations.
The revision of the IBA Rules primarily reflects practices that have been adopted by parties and arbitral tribunals since the global COVID-19 pandemic. At the same time, certain other provisions have also been optimized. The key revisions to the IBA Rules are the following:
Consultation on Evidentiary Issues (Article 2)
The new art. 2(2)(e) IBA Rules states that the evidentiary issues on which the tribunal may consult the parties include the treatment of any issues of cybersecurity and data protection.
This provision shall (particularly in light of the EU’s General Data Protection Regulation) highlight the advisability of considering data protection issues, including issues of data privacy and cybersecurity, at an early stage. The ICCA-IBA Roadmap to Data Protection in International Arbitration and the ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration can provide further guidance on these issues.
Document Production (Article 3)
Art. 3 IBA Rules includes updates regarding document production, namely the following:
• A party who has requested the production of documents may respond to an objection from the relevant counterparty if so directed by the arbitral tribunal, and within the time so ordered (art. 3(5) IBA Rules). This clarifies that parties may reply to objections, as it is often provided for in procedural orders, but that this right is not automatic.
• The arbitral tribunal does not have to consult with the parties when considering requests to produce (art. 3(7) IBA Rules).
• Documents that are produced to the opposing party in response to a request to produce do not need to be translated, but documents that are submitted to the arbitral tribunal do need to be translated into the language of the arbitration (art. 3(12)(d) and (e) IBA Rules). This means that translation costs are only incurred where necessary.
Witness statements and expert reports (Articles 4 and 5)
The new IBA Rules clarify that parties can submit second round witness statements and expert reports to cover new factual developments that could not have been addressed in a previous witness statement (art. 4(6)(b)) or expert report (art. 5(3)(b)).
These updates ensure that opportunities to give further evidence are still limited to responses to the counterparty’s evidence, but recognise that this opportunity should also extend to circumstances where new evidence has come to light that it was not possible to adduce in the firsttime round.
Tribunal-appointed experts (Article 6)
In art. 6(3) IBA Rules the wording that the authority of a tribunal-appointed expert to request information or access shall be the same as the authority of the arbitral tribunal was deleted. This provision had the potential to be misinterpreted.
Evidentiary hearings (Article 8)
According to art. 8(2) IBA Rules, an Arbitral Tribunal may order that the evidentiary hearing be conducted as a “Remote Hearing”, either at the request of a party or on its own motion. The newly inserted definition of “Remote Hearings” also includes hearings, where only certain participants or only parts of the hearing take place using tele and videoconferencing, or other communication technology.
In that event, the arbitral tribunal shall consult with the parties with a view to establishing a Remote Hearing protocol to conduct the Remote Hearing efficiently, fairly and, to the extent possible, without unintended interruptions. The protocol may address: (a) the technology to be used; (b) advance testing of the technology or training in use of the technology; (c) the starting and ending times considering, in particular, the time zones in which participants will be located; (d) how documents may be placed before a witness or the arbitral tribunal; and (e) measures to ensure that witnesses giving oral testimony are not improperly influenced or distracted.
It is standard practice for parties to agree that a witness statement or an expert report serves as direct testimony and that witnesses need only appear at an evidentiary hearing if requested for crossexamination. Art. 8(5) IBA Rules clarifies that even in this case the Arbitral Tribunal may permit that witness to give evidence at the hearing. This was intended to address some uncertainty as to whether, when a party waives its right to crossexamine a witness, the party that presented the witness may nevertheless call that witness to give testimony.
Assessment of evidence (Article 9)
The new IBA Rules now specifically include a provision giving the arbitral tribunal the authority (in contrast to art. 9(2) IBA Rules, where the court "shall" exclude evidence in certain circumstances) to exclude evidence obtained illegally, either at the request of a party or on its own motion (art. 9(3) IBA Rules).
The new IBA Rules do not make any sweeping changes. They do, however, incorporate a number of topical and important issues which are relevant for our new operating environment, such as the reference to cybersecurity and data privacy issues and the new provision on remote hearings. In particular, the new IBA Rules confirm the prevailing practice of arbitral tribunals since the global COVID-19 pandemic and are thus a welcome development.