Welcome to the Spring 2026 edition of the IBA Litigation Committee Newsletter, entitled: ‘The future of evidence: cross-border evidence gathering and discovery, AI-based evidence review, digital traces and procedural fairness’.
Released on Apr 14, 2026
The IBA Litigation Committee's EU Judicial Cooperation Subcommittee, established in 2025, aims to promote the resolution of cross-border disputes within the European Union. Our main focus is on facilitating the exchange of ideas on legal and practical issues that arise when litigating in an EU-wide context. The subcommittee thus covers a range of topics, including jurisdictional issues, service of documents, taking of evidence, and enforcement of judgments, to name but a few.
Released on Apr 14, 2026
Across the world, advances in technology have streamlined the collection and storage of evidence, having an effect on the legal process overall. With the rising complexity of these technologies, we see the deepening of the divide between those in South Africa who have true access to justice and those who have a stunted version. These advancements have resulted in procedures in law that previously did not exist, leaving those disadvantaged in a precarious situation of being unable to use these technologies or relying on an overburdened and under-resourced attorney. This article will examine how technological development may affect procedural fairness and offer recommendations to avoid unfairness.
Released on Apr 14, 2026
As generative AI improves, the risks associated with deepfake evidence increase. This article explores these risks and how they map onto existing and proposed evidentiary rules in Canada, ultimately concluding that – in a world where truth is increasingly less apparent – more may be needed to protect litigation’s truth-finding function.
Released on Apr 14, 2026
This article addresses the use of AI in the legal profession within the German legal system. The question of possible applications and the limits in the context of legal practice is discussed, using a case study as an example. The article then goes on to examine the consequences for the courts regarding the use of AI for evidence.
Released on Apr 14, 2026
This article deals with the growing reliance on digital evidence in contemporary litigation and the challenges surrounding its admissibility. It highlights the tension between the technical authenticity of electronic records and the legality of the methods used to obtain them. The article examines the need for courts to assess not only the reliability of digital evidence but also the fairness, privacy implications, and legitimacy of its collection.
Released on Apr 14, 2026
This paper assesses the evidentiary value of WhatsApp and SMS screenshots – and, by analogy, ordinary unsigned emails – in Italian civil litigation. Courts treat such communications as ‘mechanical reproductions’ under Article 2712 of the Italian Civil Code, giving them full probative effect unless their conformity is specifically disavowed. The paper summarises the impact of disavowal and the main routes to prove authenticity (verification proceedings, court-appointed forensic analysis, presumptions, and witness evidence), and briefly discusses their use to support applications for payment orders and, in stricter cases, provisionally enforceable injunctions.
Released on Apr 14, 2026
In contemporary disputes, evidentiary debates are increasingly shaped by information stored in digital environments. Data such as emails, messaging records, and information contained in internal corporate databases may become the subject of judicial proceedings through various means, including seizure by public authorities, access to systems by third parties, or leaks originating from within an organisation. What is often decisive for evidentiary purposes, however, is not what such records say, but how they were obtained. A piece of data may serve to prove a material fact if it has been obtained through a lawful process; yet where it is the product of an unlawful interference, it may lose its evidentiary character altogether. This article examines how the evidential status of digital data is assessed under Turkish law depending on the method by which such data was obtained.
Released on Apr 14, 2026
This article examines the evidentiary status of AI-generated material in disputes, primarily in litigation. The analysis is grounded in Indian law and contemporary judicial practice, with comparative references to other jurisdictions. It analyses key concerns around admissibility, reliability, and procedural fairness, particularly in light of the opacity, inconsistency, and potential fabrication inherent in AI outputs. While Indian courts have cautiously engaged with AI as a tool for preliminary research, they remain reluctant to treat it as substantive evidence. The article argues that any future acceptance of AI-generated evidence must be anchored in clear disclosure, verifiable methodology, and human oversight to preserve the integrity of judicial processes.
Released on Apr 14, 2026
A recent Southern District of New York receivership dispute illustrates how modern evidence—WhatsApp messages, email payment instructions, rent ledgers, and cross‑border property records—can be critical in post‑judgment enforcement. This article distills practical lessons on authentication, translation, chain of custody, and fairness when a non‑party’s property interests collide with receiver action across multiple jurisdictions.
Released on Apr 14, 2026
This article explores the mechanisms and limitations of cross-border discovery in Ukraine. The article examines the application of the Hague Evidence Convention, bilateral treaties, and domestic legislation, highlighting the advantages and challenges associated with each. It further compares cross-border discovery with discovery in international commercial arbitration and discusses alternative discovery methods to mitigate the hurdles of conventional discovery.
Released on Apr 14, 2026
Digital communications – including emails, messaging applications and other electronic records – increasingly shape the evidentiary landscape of civil disputes. In North Macedonia, civil procedure does not regulate individual forms of digital communication, yet the broad statutory concept of documentary evidence allows such material to be relied upon in court. The more complex questions arise not in admissibility but in evaluating authenticity, completeness and evidential weight. This article examines how local courts approach digital communications as evidence and highlights emerging practical and procedural challenges in modern civil litigation.
Released on Apr 14, 2026
Generative Artificial Intelligence (“GenAI”) poses potentially significant challenges to the processes of disclosure of documents and other evidence in common law adversarial litigation. Forgeries and other fraudulent documents are hardly new. But with the now widespread availability of high quality large language model, text-to-audio, text-to-image, and text-to-video tools, the barriers to a malicious actor creating a plausible, but inauthentic, document have never been lower. A party to litigation acting in bad faith might disclose or otherwise share such a document with opposing parties to either (a) rely on it at a hearing; or (b) sow doubt and confusion, even if not eventually relied upon at a hearing. In the face of these risks, it is incumbent on practitioners to ask whether the existing procedural guardrails against forged documents are fit for purpose. We identify potential scenarios for bad actors to use documents forged with the assistance of GenAI, the existing procedural guardrails in three common law jurisdictions and their limitations, and finally some possible responses to the challenge.
Released on Apr 14, 2026
Commercial disputes increasingly turn on digital evidence dispersed across servers, collaborative platforms, and secured devices. Cross-border data access raises significant procedural challenges, while synthetic or manipulated content introduces new authentication concerns. Drawing on recent scholarship and emerging best practices, this article proposes a framework − termed the 'portable integrity protocol' − for courts and arbitral tribunals navigating these uncharted waters.
Released on Apr 14, 2026
In an initial foray into what promises to be a busy and contentious area, two United States federal courts in different cases on the same day in February 2026 issued seemingly contradictory rulings on the novel issue of whether materials that litigants had generated themselves using publicly-available AI tools were protected from discovery.
Released on Apr 14, 2026
As global markets become increasingly interconnected, the rapid protection of assets across borders has moved to the forefront of international litigation. In Türkiye, the recognition and enforcement of foreign interim remedies remain a complex challenge due to the rigid "finality" requirement under the Private International Law (Law No. 5718). While direct enforcement is currently restricted by the Supreme Court’s settled jurisprudence, practitioners often utilize foreign orders as prima facie evidence to secure local relief. This article examines the current legal barriers in Turkish law, compares them with EU and US practices, and evaluates the strategic alternatives for foreign clients seeking legal assistance in Türkiye.
Released on Apr 14, 2026
Human interactions have undergone a paradigm shift — where traditional barriers of distance and time that once constrained human interaction have significantly diminished, and to the point where information, ideas, and instructions can traverse the world at the click of a button. This shift has significantly altered the evidentiary landscape of litigation, with disputes increasingly involving electronic records rather than traditional documentary evidence. This article examines Ghana’s statutory framework on electronic evidence, reviews emerging case law, and highlights practical challenges associated with digital records. It also considers comparative developments and explores how emerging technologies, including artificial intelligence and blockchain may influence evidentiary practices.
Released on Apr 14, 2026
What does it mean for Mexico's judiciary to begin self-regulating its interaction with algorithmic systems without a prior legal framework, without clear technical standards, and without robust methodological scrutiny?
Released on Apr 14, 2026
Recent cases in the Brazilian judiciary demonstrate that content generated by AI constitutes a present reality and may be misused, thereby calling into question the very notion of evidence as traditionally understood under Brazilian law. In light of this scenario, the discussion regarding the reliability of digital evidence produced by AI becomes paramount. The challenge is not limited to keeping pace with technological advancements but also entails addressing the risk of undermining evidentiary reliability. While legislative bodies try to regulate those issues, the Judiciary is required to develop mechanisms capable of verifying and auditing such evidence, while simultaneously safeguarding fundamental rights and ensuring the legal certainty of the proceedings.
Released on Apr 14, 2026
This edition takes our readers on a global tour of recent developments that have shaped the landscape of commercial dispute resolution over the past year. From landmark judgments to procedural innovations, our contributors share jurisdiction-specific insights that highlight the evolving challenges and opportunities facing litigators worldwide.
Released on Oct 29, 2025
As the number of estate disputes rapidly increases, so will the number of applications to protect estates pending grants of letters of administration. This article sets out the judicial remedies that are available to persons interested in the estate before letters of administration are issued, including: (1) claims without a representative being appointed; and (2) representation of the estate without the need for a full grant.
Released on Oct 29, 2025
Australia’s class action regime remains one of the most accessible in the world, yet the recent spate of judgments favouring defendants underscores that success at trial is far from guaranteed. While filing rates remain strong and there are still many class actions which settle for significant amounts, the courts’ stringent approach to causation – and insistence on clear and compelling expert testimony – imposes a genuine discipline on both claim formulation and litigation strategy. This balance between broad access to justice and robust judicial analysis will continue to shape both the volume and character of class actions in the years ahead.
Released on Oct 29, 2025
This article examines the evolution of pre-institution mediation in India, highlighting its role in promoting timely, cost-effective and collaborative resolution of commercial disputes while addressing challenges such as definitional ambiguities, limited awareness and enforcement gaps. It proposes a structured framework to enhance effectiveness and align India’s mediation landscape with global best practices.
Released on Oct 29, 2025
Three business partners agreed at the outset to resolve any disputes about their newly incorporated company through arbitration rather than litigation – valuing arbitration for its speed, confidentiality and predictability. Yet when conflict arose, one partner sought to bypass that agreement by dragging the managing partner and the company into court, hoping to avoid arbitration. In a landmark decision (Cassation No 956/2025), the Dubai Court of Cassation reaffirmed that while courts generally hold broad jurisdiction vis-à-vis the restricted jurisdiction of arbitral tribunals, which mandates that disputes involving parties that are non-signatory to an arbitration agreement should be adjudicated before the courts, arbitral tribunals are restricted to signatories of arbitration agreements. However, this does not open the door for parties to circumvent arbitration by artificially including non-signatories who are not true parties to the dispute. The ruling strengthens the enforceability of arbitration clauses against tactical attempts to undermine them, offering welcome clarity for practitioners and businesses alike.
Released on Oct 29, 2025
Canada’s robust class action regime has made it a focal point for litigation involving artificial intelligence (AI), particularly in copyright and data privacy. With Quebec and British Columbia leading as class action hotspots, recent cases demonstrate how Canadian procedural norms and statutory frameworks are shaping global dispute resolution strategies.
Released on Oct 29, 2025
In a recent landmark judgment, the Privy Council has ruled that a long-established common law exception to legal advice privilege known as the ‘Shareholder Rule’ is abolished. The Shareholder Rule provided that a company could not withhold documents from its current or former shareholders in the course of litigation between those shareholders and the company on the ground of legal advice privilege. This article examines the implications of the Privy Council’s decision in the context of Cayman Islands merger appraisal proceedings, and more generally.
Released on Oct 29, 2025
The article analyses the 1989 Italy–Brazil treaty on judicial cooperation, focusing on the recognition and enforcement of commercial judgments. It outlines the historical background, the legal frameworks in both countries, and the procedural requirements for cross-border enforcement. A recent Italian Supreme Court case is analysed to illustrate how the treaty operates and especially how it is being used in resolving jurisdictional conflicts and balancing party autonomy with public policy limits. Thanks to the ruling of 2023 by the United Sections, it was finally possible to put an end to these divergences.
Released on Oct 29, 2025
The legal landscape for companies in Germany regarding environmental, social and governance (ESG) obligations is evolving rapidly. Recent German case law impressively demonstrates the increase in regulatory scrutiny and litigation risks associated with ESG compliance, for example when it comes to ‘greenwashing’. New EU directives and meaningful judgments by German courts are tightening requirements for sustainability claims and advertising, highlighting the need for transparency and substantiation of sustainability assertions in Germany.
Released on Oct 29, 2025
On 27 February 2025, the European Court of Justice (ECJ) issued a landmark ruling in the Società Italiana Lastre (SIL) case, clarifying the legal framework for jurisdiction clauses under Article 25 of the Brussels I bis Regulation. The judgment addresses the division of competence between European Union and national law, limiting national law’s role to general contractual defects such as consent and capacity. Crucially, the ECJ upheld the validity of asymmetric jurisdiction clauses, provided they meet specific criteria ensuring legal certainty and predictability. The decision offers vital guidance for legal practitioners drafting cross-border contracts, though questions remain regarding clauses involving third-country jurisdictions.
Released on Oct 29, 2025
This article examines the newly enacted Saudi Civil Transactions Law (Royal Decree M/191 of 2023), the first comprehensive codification of civil and contract principles in the Kingdom. It highlights how the law’s substantive rules on party autonomy, force majeure and hardship are reshaping cross-border commercial litigation strategies and risk allocation. By aligning with international standards while preserving Sharia foundations, the law marks a turning point for international investors and litigators engaging with Saudi disputes.
Released on Oct 29, 2025