Wednesday 29 September 2010
On 29 May 2010, the International Bar Association adopted the new IBA Rules on the Taking of Evidence in International Arbitration. Arbitration Committee Co-Chairs Guido Tawil and Judith Gill QC had submitted the draft to the IBA Council for approval after a two-year review process that included public consultation. The revised version of the IBA Rules of Evidence was developed by the members of IBA Rules of Evidence Review Subcommittee, which was created by then Co-Chairs of the Arbitration Committee Sally Harpole and Pierre Bienvenu. 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.
The Rules are currently available in English, Chinese, French, German, Italian, Japanese, Spanish and Korean. Other translations can be accessed here.
Judith Gill QC of Allen & Overy LLP in London (Co-Chair of the IBA Arbitration Committee and a Global Arbitration Review editorial board member) commented on the public review process: ‘It is fair to say that the comments received were very supportive of both the revision exercise being undertaken and the proposed changes in the amended draft of the IBA Rules put forward.’
According to Guido Tawil of M& M Bomchil in Buenos Aires (Co-Chair of the IBA Arbitration Committee), ‘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 (Chair of the Subcommittee and a Global Arbitration Review editorial board member) 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 as well as Global Arbitration Review editorial board member) 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 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. It also includes a non-exhaustive list of matters which such ‘consultation’ may address.
- 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.
- Expansion of confidentiality protections respecting both documents produced pursuant to document requests and documents submitted by a party in support of its own case and documents introduced by 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; the revised IBA Rules also foresee the provision of evidence in reply to expert reports.
- 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.
- Incorporation of an express requirement of good faith in taking evidence coupled with an empowerment of the tribunal to consider lack of good faith in the awarding of costs.
- 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 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
The 2010 IBA Rules on the Taking of Evidence in International Arbitration can be accessed in English and other languages at: http://tinyurl.com/IBA-Arbitration-Guidelines.