IBA revises the Rules on the Taking of Evidence in International Arbitration
The IBA is currently finalising a revision of the IBA Rules on the Taking of Evidence, which is expected to come into force early in 2021.
The IBA Rules on the Taking of Evidence in International Arbitration were published in 1999 and first revised in 2010. In 2015, the IBA Arbitration Guidelines and Rules Subcommittee conducted a worldwide survey on the use of the IBA arbitration practice guidelines and rules, including the IBA Rules of Evidence. The results of the survey were published in a report in 2016. The report showed that the majority of the respondents were generally satisfied with the IBA Rules of Evidence and noted that a revision may be considered on the ten-year anniversary of the Rules.
In 2019, the IBA Guidelines and Rules Subcommittee established a Task Force comprising more than 30 international arbitration practitioners from both civil- and common-law backgrounds. The Task Force studied the need for any revisions to the IBA Rules of Evidence. Given the general satisfaction with the 2010 version of the Rules, the Task Force proposed a limited number of changes.
In spring 2020, these proposed changes were submitted for comment and feedback to over 160 arbitration institutions worldwide, as well the IBA Arbitration Committee, and the drafters of the 1999 and 2010 Rules. The Task Force considered the public comments received, refined proposed changes, and made additional revisions – including, most significantly, the incorporation of a provision on remote hearings. Other proposed changes include a provision permitting an arbitral tribunal to exclude evidence that has been obtained illegally; a notation suggesting that the tribunal’s initial consultation with the parties on evidentiary issues include discussion of cybersecurity and data protection issues; and clarifying changes on a number of points where experience with the existing Rules suggested some ambiguity. In some cases, the Task Force also abandoned proposed changes where there appeared to be insufficient consensus on the revision.
In parallel, the Task Force revised the Commentary to the IBA Rules of Evidence. The Commentary provides helpful guidance on the Rules. It will be available for download from the IBA website.
The draft revised Rules are expected to be considered by the IBA Council in December and, if approved, will go into force shortly thereafter.