Newly revised IBA Rules on the Taking of Evidence in International Arbitration

Newly revised IBA Rules on the Taking of Evidence in International Arbitration

On 29 May 2010, the International Bar Association Council 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 the IBA Rules of Evidence Review Subcommittee, which was created by the previous Arbitration Committee Co-Chairs 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.

Judith Gill 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, ‘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 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, Chair of the Subcommittee, stated: ‘Both parties and arbitrators will clearly recognize 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, LPD Council Member, and 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 10 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.’

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

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