The 2020 amendments to the IBA Rules on the Taking of Evidence in International Arbitration

Álvaro López de Argumedo Piñeiro
Co-Chair 2019-2020, IBA Arbitration Guidelines and Rules Subcommittee; Review Task Force; Uría Menéndez, Madrid
alvaro.argumedo@uria.com 

The IBA Rules on the Taking of Evidence in International Arbitration (the Rules) are amongst the most influential soft law instruments in the international arbitration community. The Rules were created in 1999 to guide parties on how to properly conduct the taking of evidence in international arbitration. The Rules carefully balance civil and common law procedural traditions, and have become an indispensable tool for parties and arbitrators worldwide. 

The Rules were first amended in 2010, a decade after they were introduced. In 2016, the IBA issued a report on the reception of the IBA arbitration soft law products, in which it recommended a further revision of the Rules. Consequently, the IBA International Arbitration Committee (the Committee), under the co-chairmanship of Eduardo Silva and Julie Bedard, appointed me and Fernando Mantilla-Serrano as co-chairs^[1] of the task force in charge of reviewing, commenting on and amending the Rules (the Task Force). 

The Task Force was created in early 2019 and was made up of 28 prominent members of the international arbitration community^[2] from all over the world, with the intention of ensuring that the Rules remained the most diverse and representative soft law instrument in the international arbitration community. 

The 18-month process of reviewing the Rules saw the Task Force conduct several rounds of comments and amendments. The subcommittee also organised a public consultation phase, which reached out to over 160 arbitration institutions and leading experts in the field from all over the world for comments on the Task Force’s proposed amendments.

The Task Force took an ‘if it ain’t broke, don’t fix it’ approach to the review, as the 2016 report had shown that the Rules were working properly and that only a few minor amendments were required.

The 2016 report had also revealed that the Rules had achieved a successful balance between the common and continental law systems and that every effort should be made to maintain that balance.

The areas covered by the Task Force may be summarised as follows:

Cybersecurity and data protection (Article 2)

Cybersecurity and data protection issues have become increasingly important since the Rules were revised in 2010. Cybersecurity threats are a growing concern in international arbitration, especially because international arbitrations tend to concern confidential or classified information, making them an attractive target for cybersecurity attacks. A similar concern applies to data protection issues, as parties may be wary of sharing certain documents during the procedure given the risk of breaching data protection laws (which vary by country) or exposing confidential data to potential cybersecurity threats. 

Therefore, the Task Force decided to include a provision (Article 2.2 of the Rules) which makes clear that cybersecurity and data protection issues may be taken into account during the arbitral tribunal’s consultation on the process of taking evidence.

Witness statements and expert reports (Articles 4, 5 and 8)

It is common practice during an arbitration procedure to have at least two rounds of pleadings: (1) the statement of claim and statement of defence and (2) the reply to the statement of defence and rejoinder to the reply. Parties generally submit their factual and expert witness statements during the first round of pleadings, and while a second round of factual and expert witness statements may be submitted, they are limited to responding to what the other factual or expert witness said about their own statement.

However, there is a growing trend for parties to submit factual or expert witness statements in the second round of submissions that respond to new factual or technical developments that were not known during the first round of pleadings. 

The Task Force decided to reflect this trend and to expressly permit parties to submit additional factual and expert witness statements during a second round of pleadings that address new factual or technical issues, and do not merely respond to what a witness or expert has said about their previous statements.

Another amendment regarding witness testimony was included in Article 8 of the Rules. It is common practice in an arbitration procedure for witnesses to only appear at the hearing if they are called for cross-examination. Witnesses who are not called for cross-examination generally do not give oral testimony at the hearing because their witness statement is taken as their direct testimony and therefore there is no need to appear.
However, there is a growing trend in international arbitration for tribunals to allow a witness to give oral testimony at the hearing despite the counterparty having waived its right to cross-examine in the hearing.

The Task Force therefore decided to amend the Rules to reflect this growing practice, which tribunals sometimes find helpful and allows a witness to give direct ‘warm-up’ testimony. This testimony can be helpful in the sense that it puts the cross-examination into context, allowing witnesses to summarise the main arguments in their statements and address new facts that come to light after they have given their original statements.

Virtual hearings (Article 8)

The most substantial change to the 2010 version of the Rules is the inclusion of a new Article 8.2 on remote hearings. As a consequence of the Covid-19 pandemic, remote hearings became the ‘new normal’ while restrictions on travelling and gatherings were in place. Conducting in-person hearings became impossible or impractical, so tribunals were forced to resort to remote hearings in order to continue proceedings.

The Task Force provided a definition of remote hearings in the ‘Definitions’ section of the Rules. In short, remote (or virtual) hearings involve the parties, witnesses and the tribunal itself being able to connect remotely from different places, whether by videoconference, teleconference or other technological means.  

Illegal evidence (Article 9)

A new Article 9.3 was added to the Rules regarding illegal evidence.

The issue of whether or not to admit illegally obtained evidence is an ongoing debate within the international arbitration community – and more generally within the courts. A given piece of evidence may decide the outcome of a case. Therefore, the question arises whether illegally obtained evidence should be accepted in an arbitration procedure and considered by the tribunal when deliberating. The answer is not always clear given that evidence may be illegal under the law of one country but not under the law of another country that also applies to the dispute (eg, recordings of private conversations without the consent of one of the parties).

Given that there is no general standard as to what precisely constitutes illegally obtained evidence (which will vary depending on the law applicable to the procedure), the Task Force decided to add wording that grants the tribunal flexibility to accept or reject evidence on these grounds (ie, the tribunal might act at the request of a party or of its own accord to decide on the admissibility of illegally obtained evidence).

Provisions analysed but not changed

Finally, while the Task Force also updated the commentary to reflect the amendments made to the Rules, it was mindful that the commentary is not meant to address each and every issue with respect to the taking of evidence. The aim of the commentary is to provide guidance on the application of the Rules, not to complete or develop them. The Task Force was therefore of the view that the commentary should not become overcomplicated or lengthy.

The Task Force also discussed a potential update to the definition of the concept of ‘document’ to include, among others, chains of messages exchanged via new technological tools such as WhatsApp, but ultimately decided not to broaden the term to avoid falling into the trap of ‘chasing’ technological developments when the definition was already sufficiently broad to cover changes in this area. 

It also analysed the regulation of the document production phase and whether it required amendment. After thorough discussions and several proposals, the Task Force considered that the existing regulation was broad enough to cover the various problems that could arise in that phase and decided not to modify it. 
Similarly, the Task Force carefully examined the party-appointed expert regulation, particularly to make it more cost and time efficient. Several proposals were exchanged in this regard, including a potential regulation of expert meeting conferences, but it was concluded that a change in the Rules was not warranted, although references could be made in the commentary. A more detailed reference to legal privilege was also considered but not implemented due to the significant difficulties involved in covering every angle from the point of view of every jurisdiction.

In conclusion, many of the changes were introduced to clarify what the Rules already stated, but the Task Force also amended certain substantive parts of the Rules to reflect trends in the international arbitration community over the last decade.

Conclusions

The update of the IBA Rules on the taking of evidence slightly modified the Rules in order to:

• reflect practices that have developed in the international arbitration process;
• reinforce the idea that the Rules should maintain the always-delicate balance between common and continental law systems; and
• flexibly take into account the technological challenges facing the arbitration community.

Sources

IBA Rules on the Taking of Evidence in International Arbitration: Key Features of the 2020 Revision, by David S. Blackman, Santiago Rodríguez Senior, Jesús Saracho Aguirre, Alice Williams. NYSBA New York Dispute Resolution Lawyer, 2021, Vol. 14, No. 2.
 

^[1]Fernando Mantilla-Serrano (Colombia/France) and I (Álvaro López de Argumedo (Spain)) were succeeded as co-chairs by Nathalie Voser (Switzerland) and Joseph E. Neuhaus (United States) in late 2019. David S. Blackman (United States), Alice Williams (France/Switzerland), Jesús Saracho Aguirre (Spain) and Santiago Rodríguez Senior (Venezuela/Spain) were the Task Force’s secretaries until the publication of the amended Rules.

^[2]The other Task Force members were Carmen Martinez López (Spain/United Kingdom), Stefan Brocker (Sweden), Cecilia Carrara (Italy), Kabir Duggal (India/United States), Valeria Galindez (Brazil/Argentina), Babajide Ogundipe (Nigeria), Andrey Panov (Russia), Noiana Marigo (Argentina/United States), Samantha Rowe (United Kingdom/Ireland), Anne-Véronique Schlaepfer (Switzerland), Jimmy Skjold Hansen (Denmark), Helen H Shi (China), Mohamed Abdel Wahab (Egypt), Roland Ziadé (Lebanon/France), Daniel Busse (Germany), Pierre Bienvenu (Canada), Laura Halonen (Finland/Germany), Ben Juratowitch (Australia/France), Tejas Karia (India), Erica Stein (United States/Belgium), Cosmin Vasile (Romania), Sabina Sacco (Chile/Italy/El Salvador), Hassan Arab (United Arab Emirates), Ximena Herrera-Bernal (Colombia/United Kingdom), Bartosz Kruzewski (Poland), Isabelle Michou (Canada/France), Tyler B. Robinson (United States/United Kingdom) and Ariel Ye (China).