The 2020 revisions to the IBA Rules of Evidence

Joseph E Neuhaus
Co-Chair 2020-2021, IBA Arbitration Guidelines and Rules Subcommittee; Sullivan & Cromwell, New York
neuhausj@sullcrom.com

Nathalie Voser
Co-Chair 2020-2021, IBA Arbitration Guidelines and Rules Subcommittee; Rothorn Legal, Zurich
nathalie.voser@rothorn.legal

We were the co-chairs of the Task Force that issued the 2020 revisions to the IBA Rules on the Taking of Evidence in International Commercial Arbitration ('Rules of Evidence'). If one looks at a blackline of our work product, one is struck by how little we changed. There are words inserted here and there, a few deletions, and one or two paragraph-long insertions, but also pages in a row with no changes whatsoever. So what is there to talk about?

We propose to make three points: first, the apparently meagre results of the Task Force’s efforts are a testament to how well our predecessors in drafting and revising the Rules did their jobs; second, the small amount of red ink may mask a few significant changes that practitioners should be aware of; and third, the Task Force consciously considered and avoided making some changes on matters that may be of interest, and the Rules’ silence on these points is intentional.^[1]

The history of revisions of the Rules

The 2020 revisions to the IBA Rules were the fourth IBA drafting effort on the topic over nearly forty years. The precursor to the IBA Rules of Evidence were the Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitration (1983 Rules), adopted by the IBA on 28 May 1983. These rudimentary rules lacked provisions that we now take for granted – such as rules providing for disclosure of internal party documents – and, while generally well received and frequently discussed, they got relatively little traction.

In 1997, the IBA undertook a thorough rewrite. The 1999 Rules created the article structure that has been retained in the IBA Rules of Evidence since and was animated by principles that have likewise been retained in the Rules to this day, including: 

• doing away with restrictions on production of internal documents; 
• requiring that requested documents or categories of documents be ‘relevant and material to the outcome’; and 
• providing a framework for a party’s objections to such requests.

In 2008, the IBA Arbitration Committee commissioned a review and updating of the 1999 Rules. After conducting an online survey of arbitration stakeholders in 2008 and discussions at IBA open fora throughout 2008 and 2009, the 2010 Subcommittee’s guiding principle was, in the words of Richard Kreindler, chair of the 2010 Subcommittee, ‘if it ain’t broke, don’t fix it’.^[2]

Nevertheless, the 2010 Subcommittee made some significant changes, including: 

• the addition of a new Article 2 regarding preliminary consultation on evidentiary issues; 
• clarifying procedures for requesting, and objecting to, disclosure of documents, including electronic documents; and 
• the addition of a new Article 9(3) on considerations applicable to a determination of legal privilege.

The effort to further review the Rules began with a worldwide survey on the use of IBA arbitration soft law instruments in 2015-2016. The 2016 Report on the Reception of the IBA Arbitration Soft Law Products showed a high degree of satisfaction with the existing text of the IBA Rules of Evidence – fewer than 10 per cent of survey respondents said that the Rules should be amended – an early sign that relatively few changes would be needed.^[3]

In May 2019 the IBA Arbitration Committee’s Subcommittee on Rules and Guidelines established a task force for the revision of the IBA Rules of Evidence and the accompanying Commentary, chaired initially by our predecessors Álvaro López de Argumedo and Fernando Mantilla-Serrano. The Task Force consisted of more than 30 practitioners divided into four working groups, two co-chairs, and several committee secretaries. Almost immediately, the Task Force recognised that the 2020 revision would likely be a fine-tuning of the existing rules – seeking to clarify ambiguities, refine details, and address any changes to international arbitral practice over the preceding decade – rather than a complete revision. The IBA Rules had been one of the most successful IBA soft law instruments, and the Task Force emphatically agreed with Richard Kreindler’s ‘if it ain’t broke…’ dictum.

Between May 2019 and April 2020, the Task Force exchanged numerous drafts of the IBA Rules of Evidence and the Commentary. The Task Force also planned for a period of public comment, but circumstances conspired against this plan. Whereas previous revisions to the IBA Rules of Evidence enjoyed the opportunity to be discussed and commented upon in person at various meetings and conferences, the Covid-19 pandemic curtailed and disrupted plans for such meetings and conferences at precisely the time that the Task Force was seeking public comments on its draft of the Rules. 

Nevertheless, in April 2020, the Task Force circulated its proposed draft of the Rules to the officers of the IBA Arbitration Committee, the members of the 1999 Rules Working Party and of the 2010 Rules Subcommittee, as well as more than 160 international arbitration institutions around the world. The Task Force received 45 responses, which were often meaningful and thoughtful and resulted in changes to the draft. 

After the IBA adopted the revised rules, the Task Force undertook to have the Rules translated into as many languages as possible. As a result of the Herculean efforts of numerous volunteer IBA members, the 2020 version of the IBA Rules of Evidence are now available in 19 languages on the IBA website. The Task Force also made the conscious decision to give higher visibility to the Commentary to the revised Rules. This very useful background commentary on the Rules, developed and amended by the drafters of each version of the Rules, is available on the IBA website in 16 languages.

Significant changes in the 2020 Revisions

While, like any parent, we love all of our children equally, we want to highlight three substantive modernisations of the Rules and four significant tweaks that the Task Force made in the 2020 revisions. The three substantive modernisations are:

• remote hearings;
• evidence obtained illegally; and
• cybersecurity and data protection.

Remote hearings 

Given that the Task Force completed the draft revisions and circulated them for public comment at the start of the worldwide pandemic shutdown, it should come as no surprise that it included provisions on remote hearings. This change was also suggested in the public comment process. 

The 2020 Rules include provisions to replace and modernise the last sentence of Article 8.1 in the 2010 Rules, which provided that ‘each witness shall appear in person unless the Arbitral Tribunal allows the use of videoconference or similar technology with respect to a particular witness’. 

The 2020 Rules defines the term ‘remote hearing’ to include both hearings that are conducted entirely remotely, with none of the participants in a single place at the same time, and hearings so conducted only in part. 

Article 8.2 introduces the concept of a remote hearing protocol for evidentiary hearings, and outlines issues that, experience suggests might be addressed in the protocol.^[4]

Evidence obtained illegally

Another significant change to the 2020 Rules was the inclusion of a new Article 9.3, providing that the ‘Arbitral Tribunal may, at the request of a Party or on its own motion, exclude evidence obtained illegally’. 

The Task Force chose not to add this ground for exclusion to the mandatory bases of exclusion under Article 9.2, such as privilege or lack of relevance and materiality (such evidence ‘shall’ be excluded), but instead created a new category that gave the Arbitral Tribunal flexibility to decide whether to exclude illegally obtained evidence, and what law is applicable to the question. Arbitral practice suggested that no single rule could be crafted to address the treatment of such evidence; the result depends heavily on the facts and the applicable law. 

The Task Force’s commentary provides a brief outline of the factors that the arbitral tribunals may consider, including: 

• the culpability (or lack thereof) of the party offering the evidence in the underlying illegal conduct; 
• proportionality concerns; 
• the importance of the evidence to the outcome of the case; 
• whether the evidence has entered the public domain through ‘leaks’; and 
• the clarity and severity of the illegality.^[5]

Cybersecurity and data protection

Our third nominee for the most significant substantive updating of the Rules is the addition of a provision calling for the tribunal to consult with the parties at the outset of the proceedings on ‘any issues of cybersecurity and data protection’. This provision – Article 2.2(e) – adds to the list of issues that the tribunal may address in the consultation on evidentiary issues required by Article 2. The Task Force added this provision in view of the significant increase in attention devoted to cybersecurity and data protection issues since 2010, including the European Union’s promulgation of the General Data Privacy Regulation (GDPR) in 2016.

Our favourite ‘significant tweaks’ in the 2020 revisions to the Rules are the following:

•    oral direct testimony;
•    no translations for produced documents; 
•    reply witness statements can respond to new developments; and 
•    replies to objections to document requests. 

Oral direct testimony

The IBA Rules of Evidence have long envisioned in Article 8.5 that a witness statement or expert report may serve as the witness’s direct testimony, if the parties so agree or the tribunal so orders. 

The Task Force recognised a common practice of permitting direct witnesses some time to ‘warm up’, or to address the final submissions from the other side or new developments, before being turned over for cross-examination. To highlight that possibility, the 2020 revisions add to Article 8.5 a clause that reads, ‘in which event [that is, when the witness testimony or expert report shall serve as direct testimony], the Arbitral Tribunal may nevertheless permit further oral direct testimony’.

No translations for produced documents

The 2010 Rules provided in Article 3.12(d) that documents were to be ‘submitted together with the originals and marked as translations with the original language identified’. The Task Force was concerned that this formulation might be read to require such translations for production of documents in response to a document request. Indeed, the public comments that the Task Force received revealed some confusion on the matter. 

Article 3.12(d) and (e) of the 2020 Rules make clear that ordinarily documents to be produced – as opposed to submitted to the Arbitral Tribunal – need not be translated.

Reply witness statements can respond to new developments

Articles 4.6 and 5.3 of the 2010 Rules confined reply witness statements and expert reports to ‘matters in another Party’s Witness Statements, Expert Reports or other submissions that have not been previously presented in the arbitration’. The Task Force considered that this might be too narrow where there were factual developments that the witness or expert had not had an opportunity to address but that weren’t addressed in the other party’s submissions. 

The 2020 revisions therefore added Article 4.6(b) and 5.3(b), which provide that reply witness statements and expert reports might address ‘new developments that could not have been addressed in a previous Witness Statement’.^[6]

Replies to objections to document requests

The 2010 Rules provide in Article 3 for a request for documents and an objection from the opposing party. In contemporary practice, arbitral tribunals often provide for the requesting party to reply to the objection, either presenting arguments in support of the request or withdrawing or modifying it, which may serve to narrow the dispute. 

In recognition of this practice, the 2020 Task Force added a sentence to the end of Article 3.5 providing, ‘if so directed by the Arbitral Tribunal, and within the time so ordered, the requesting party may respond to the objection’.^[7]

Points consciously omitted

As noted above, the Task Force consciously chose not to attempt to develop a rule to govern the treatment of illegally excluded evidence beyond the new Article 9.3 permitting the tribunal to exclude such evidence, concluding that no single standard could be devised. 

For similar reasons, the Task Force decided not to attempt to provide a definition of the term ‘relevant to the case and material to its outcome’, the central requirement for document requests under Article 3.3(b). The 2016 IBA report on the reception of IBA soft law instruments had highlighted a desire for additional guidance on the meaning of the term.^[8] In the course of exchanging drafts and comments within the Task Force, it became apparent that reaching a wide consensus within the arbitral community on a precise and concise definition of the terms would be both extremely difficult and potentially unduly constraining on the tribunal’s flexibility.

The Task Force also sought to address concerns that arbitral tribunals are reluctant to draw adverse inferences under Articles 9.6 and 9.7 when a party fails without satisfactory explanation to make available documents or other evidence (such as testimony) ordered by the tribunal or sought by another party and not objected to in due time. The Task Force proposed for public comment an amendment that would have required that the tribunal ‘shall consider’, either at the request of a party or its own motion, whether an adverse inference was warranted in such situations (as opposed to the prior provision that stated simply that ‘the Arbitral Tribunal may’ draw such an inference). The proposal met with criticism when circulated for public comment. Some felt the proposed change was superfluous. Others worried that the mandatory language might expose awards to challenge. In the end, the Task Force concluded it was not possible to safely put more ‘teeth’ in the tribunal’s power to draw adverse inferences.

The 2020 revisions to the IBA Rules of Evidence update and in places clarify the already hugely popular instrument. We hope that the Task Force’s efforts will encourage the further adoption of one of the most significant efforts at harmonisation of arbitral procedure in our time.

^[1]For a fuller discussion of the history of the 2020 revisions to the IBA Rules of Evidence, see Joseph E Neuhaus, Andrew J Finn and David S Blackman, ‘The 2020 IBA Rules on the Taking of Evidence in International Arbitration: A History and Discussion of the 2020 Revisions’, (Global Arbitration Review, 2021), The Guide to Evidence in International Arbitration, 20.

^[2]Lawrence S Schaner, ‘Due Process in International Arbitration: A Report on the 12th IBA International Arbitration Day’, (IBA Legal Practice Division Arbitration Newsletter, March 2009), 25 (reporting remarks at IBA panel on revisiting the IBA Rules of Evidence).

^[3]IBA Arbitration Guidelines and Rules Subcommittee, Report on the Reception of IBA Arbitration Soft Law Products, (2016), see www.ibanet.org/document?id=Subcommittee-on-Arbitration-Guidelines-and-Rules-IBA-soft-law-products-Sept-2016, para 77.

^[4]2020 Rules, Art. 8.2 (‘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. 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: (1) the technology to be used; (2) advance testing of the technology or training in use of the technology; (3) the starting and ending times considering, in particular, the time zones in which participants will be located; (4) how Documents may be placed before a witness or the Arbitral Tribunal; and (5) measures to ensure that witnesses giving oral testimony are not improperly influenced or distracted’.).

^[5]2020 Commentary (IBA, January 2021) see https://www.ibanet.org/MediaHandler?id=4F797338-693E-47C7-A92A-1509790ECC9D, 30.

^[6]Article 4.6(b) inserts the word ‘factual’ in the phrase ‘new developments’.

^[7]The revisions also amended Articles 3.6 and 3.7 – which deal with the parties’ consultations, and the tribunal’s rulings, on the document request and objections – to refer to such responses to the objections.

^[8]2016 Report, supra, para 87.