14/06/2010

IBA announces publication of revised evidence rules for international arbitration

The International Bar Association (IBA) has published a revised edition of the IBA Rules on the Taking of Evidence in International Arbitration (IBA Rules). Following a two-year review process, which included public consultation, the IBA’s Arbitration Committee Co-Chairs, Guido Tawil and Judith Gill QC, submitted the proposed revisions to the IBA Council for approval at the recently held mid-year meeting of the IBA’s governing body in Copenhagen, Denmark. The revisions were accepted.

The process to update the IBA Rules was begun by the immediate past Co-Chairs of the Arbitration Committee, Sally Harpole and Pierre Bienvenu, who created the IBA Rules of Evidence Review Subcommittee comprising 22 leading practitioners representing a range of legal systems and cultural backgrounds (the full list appears in the notes to the editor). The Subcommittee was advised by members of the 1999 Working Party responsible for the drafting of the 1999 IBA Rules as well as by representatives of leading arbitral institutions.

Judith Gill QC of Allen & Overy LLP in London and Co-Chair of the IBA Arbitration Committee commented, ‘The nature of international arbitration has altered significantly over the last decade and accordingly warranted the updating of the IBA Rules. As an example, globalisation has seen many jurisdictions, once averse to settling disputes outside of a court, now embrace international arbitration as a legitimate method of solving disputes. As a vital component of arbitral proceedings, the taking of evidence needs to be as inclusive of different cultures and legal systems as possible.’

According to Guido Tawil of M& M Bomchil in Buenos Aires and Co-Chair of the IBA Arbitration Committee said, ‘The revised rules meaningfully update and supplement the 1999 version, while preserving the basic procedural framework and careful balance achieved by the 1999 version.’ Pierre Bienvenu of Ogilvy Renault in Montreal; former Co-Chair and an initiator of the revision effort stated, ‘The Subcommittee carefully considered every article of the Rules and each of the many changes that were proposed in the course of the review process, while in the end recommending only those changes which it felt were necessary to update the Rules.’

Richard Kreindler of Shearman & Sterling LLP in Frankfurt and Chair of the Subcommittee stated, ‘Both parties and arbitrators will clearly recognise the 1999 IBA Rules, and at the same time find in the revised IBA Rules additional up-to-date tools to address such new or increasing challenges as electronic document disclosure, abuse of the evidentiary process, and competing standards of legal privilege.’

David W Rivkin of Debevoise & Plimpton LLP in New York, a member of both the original Working Party and the Review Subcommittee stated, ‘The 1999 IBA Rules were quickly accepted and adopted by many parties, just as the original drafters and the IBA had hoped. After ten years of experience, the IBA Rules have been updated to reflect current practices and challenges, and they should achieve even better the original goal of promoting efficiency in international arbitration.’

Among the key updates and revisions are the following:

An obligation on the tribunal to consult the parties at the earliest appropriate time with a view to agreeing on an efficient, economical and fair process for taking evidence.
Greater guidance to the tribunal on how to address requests for documents or information maintained in electronic form – so-called ‘e-disclosure.’ Similarly, the revisions give greater guidance as to requests for documents in the possession of third parties.
Greater clarity respecting the contents of expert reports and in particular the requirement to describe the instructions given to the expert and a statement of his or her independence from the parties, legal advisers and tribunal.
An obligation on witnesses to appear for oral testimony at a hearing only if their appearance has been requested by any party or the tribunal; the revised IBA Rules also provide for the use of videoconference or similar technology.
More specific guidance respecting issues of legal impediment or privilege, including the need to maintain fairness and equality particularly if the parties are subject to different legal or ethical rules.
Deletion of the word ‘commercial’ from the title, in recognition of the potential equal application to ‘non-commercial’ arbitrations such as investment treaty-based disputes.

The revised rules will apply to all arbitrations in which the parties agree to apply the IBA Rules after 29 May 2010, whether as part of new arbitration agreements or in determining the rules of procedure in a pending or future arbitration.

The 2010 IBA Rules on the Taking of Evidence in International Arbitration can be downloaded from here.

ENDS

For further information please contact:

Romana St. Matthew - Daniel
International Bar Association
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Notes to the Editor

The Subcommittee was comprised of 22 leading practitioners representing a range of legal systems and cultural backgrounds:

Richard H Kreindler, of Shearman & Sterling LLP in Frankfurt (Chair)
David Arias, of Pérez-Llorca in Madrid
C Mark Baker, of Fulbright & Jaworski LLP in Houston
Pierre Bienvenu, of Ogilvy Renault LLP in Montréal
Amy F Cohen, of Shearman & Sterling LLP in Frankfurt (Secretary)
Antonias Dimolitsa, of Antonias Dimolitsa & Associates in Athens
Paul D Friedland, of White & Case LLP in New York
Nicolás Gamboa, of Gamboa & Chalea Abogados in Bogotá
Judith Gill QC, of Allen & Overy LLP in London
Peter Heckel, of Hengeler Mueller in Frankfurt
Stephen Jagusch, of Allen & Overy in London
Xiang Ji, of Fangda Partners in Beijing
Kap-You (Kevin) Kim, of Bae Kim & Lee LLC in Seoul
Toby Landau QC, of Essex Court Chambers in London
Alexis Mourre, of Castaldi Mourre & Partners in Paris
Hilmar Raeschke-Kessler, Rechtsanwalt beim Bundesgerichtshof in Karlsruhe
David W Rivkin, of Debevoise & Plimpton LLP in New York
Georg von Segesser, of Schellenberg Wittmer in Zurich
Essam Al Tamimi, of Al Tamimi & Company in Dubai
Guido S Tawil, of M&M Bomchil Abogados in Buenos Aires
Hiroyuki Tezuka, of Nishimura & Asahi in Tokyo
Ariel Ye, of King & Wood in Beijing