Drafting the original IBA Rules of Evidence

David W Rivkin
Co-Chair, 1997-1999, IBA Committee D (Arbitration Committee); Working Party on the Rules; IBA President, 2015-2016;
Arbitration Chambers, New York
dwrivkin@arbchambers.com

The original IBA Rules on the Taking of Evidence in International Commercial Arbitration ('Rules of Evidence'), adopted in 1999, were motivated by two converging factors. In the late 1990s, the use of international arbitration was growing rapidly. As international trade was expanding, parties and counsel with little or no experience in international arbitration were choosing international arbitration to resolve their disputes. Additionally, as remains the case today, institutional and ad hoc rules intentionally leave a procedural void between the submission of initial pleadings and the issuance of the award. Most institutional and ad hoc rules leave the procedures to the discretion of the parties, so long as each party has an opportunity to present its evidence.

This gap, while laudable in order to promote flexibility and party autonomy, often led parties and arbitrators to spend a substantial amount of time at the beginning of a case drafting procedural rules from scratch. Moreover, parties and counsel who were new to international arbitration had little guidance from the institutions or other sources on how an international arbitration could be conducted, or what procedure the opposing party or the arbitral tribunal might expect. In 1983, the IBA had adopted the Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitration, but they were rarely used. 

Therefore, Wolfgang Kühn and I, as Co-Chairs of what was then known as IBA Committee D (Arbitration),^[1]  decided that drafting rules for gathering and presenting evidence in international commercial arbitration would promote the use of effective and efficient international arbitration. We gathered a blue-ribbon drafting committee of experienced international arbitration practitioners who willingly agreed to undertake this effort. ^[2] 

The Working Party met many times in person – of course, Zoom and other forms of video conferencing were not available then. We quickly agreed on several principles:

• The Rules should be truly international to encourage parties not simply to bring domestic procedure into international arbitration. They should reflect a blending of common law and civil law procedures, using the best elements of each. Parties from any system of procedure should feel comfortable using them.
• Party autonomy is critical to international arbitration. Moreover, one of the strengths of international arbitration is its flexibility. The Rules must protect this party autonomy and flexibility. Therefore, we emphasised in the Introduction to the Rules that parties and arbitral tribunals may adopt them in whole or in part, or they may simply use them as guidelines. We also noted in the Rules that ‘they are not intended to limit the flexibility that is inherent in, and an advantage of, international arbitration, and Arbitral Tribunals and parties are free to adapt them to the particular circumstances of each arbitration.’ 
• As the Rules also state, they are based on the principle that ‘each party shall be entitled to know, reasonably in advance of any Evidentiary Hearing, the evidence on which the other party intends to rely.’ 
• Given the importance of the project and the desire that the Rules be widely adopted, we published drafts of the Rules for several rounds of public consultation. 

Not surprisingly, the most contentious issue involved document requests and production. The traditions in common law and civil law jurisdictions vary widely in this regard. A breakthrough occurred when we discussed what requests for the production of documents were generally permitted in civil law jurisdictions. Several of the European lawyers said that a court would permit a request for a specific document that identified its subject, author and date. I posited a hypothetical situation involving a party’s termination of a major joint venture; in such a circumstance, it must be assumed that the party’s board considered a memorandum describing the pros and cons of the termination. I asked if a court would permit the other party to seek production of that memorandum even if one did not know the author or date of the memorandum. Each of the civil lawyers in the Working Party agreed that the request was specific enough that a court would likely grant such a request, and Hilmar Raeschke-Kessler pointed to a provision in German law that would permit such a request. 

We therefore agreed that a consensus existed to permit requests either by identifying the specific document or by describing a category of documents, so long as the category was sufficiently narrowly drawn. Through further discussion, we agreed on the language that remains today: ‘a description in sufficient detail (including subject matter) of a narrow and specific requested category of Documents that are reasonably believed to exist’. We also agreed to limit requests further by requiring that parties first exchange the documents on which they intend to rely (a provision that is not so often followed in practice) and by inserting the other requirements in Article 3.3, such as that they must be ‘relevant to the case and material to its outcome’.

The other provisions in the Rules – on witness statements, experts, the hearing and limitations on evidence – were similarly drafted to provide balance and efficiency. We sought to adopt the best procedural features no matter their origin. Our goal was to create a level playing field for the parties coming from different jurisdictions and traditions. The public consultations were very useful, and the Working Party made revisions based on comments that we received.

The document production provisions were the principal source of criticism in the public consultations on the draft Rules. Lawyers and institutions from civil law countries called the Rules the ‘Americanisation of international arbitration,’ – a criticism that I always found amusing since I was the only American on the Working Party, and only four of the 16 members of the group came from common law jurisdictions. The German Arbitration Institute (Deutschen Institution für Schiedsgerichts¬bar¬keit or DIS) said that German companies would never use the Rules. I responded that they would find the Rules quite useful to limit broad document requests by an opposing party from the United States or another common law jurisdiction. Soon after the final Rules were published, the DIS in fact asked for a hundred copies to distribute to its corporate members.

The broad acceptance of the IBA Rules of Evidence has shown that the Working Party found the right balance. We protected party autonomy and flexibility, but we provided a standard basis for counsel, parties and arbitral tribunals to discuss procedure at the beginning of each case. They have been a standard ever since. In each of the IBA’s two revisions of the Rules, the strong consensus has been to tinker with a few provisions to improve and update them, but not to make any substantial changes. The Rules also thrust the IBA Arbitration Committee into the centre of the global practice of international arbitration, and their success encouraged the Committee to engage in its other soft law efforts that have helped to transform the practice.

^[1]At the time, every IBA Committee was known by either a letter or a number.

^[2]The Working Party was led by Giovanni M Ughi of Italy, who, as then-Chair of Committee D, had led the preparation of the 1983 rules, and it included Hans Bagner, Sweden; John Beechey, England; Jacques Buhart, France; Peter Caldwell, Hong Kong; Bernardo M. Cremades, Spain; Otto de Witt Wijnen, The Netherlands; Emmanuel Gaillard, France; Paul A  Gélinas, France; Pierre A. Karrer, Switzerland; Wolfgang Kühn, Germany; Jan Paulsson, France; Hilmar Raeschke-Kessler, Germany; David W Rivkin, United States; Hans van Houtte, Belgium; and Johnny Veeder, England. It was a sign of those times, and of the concentration of international arbitration in Europe and North America at the time, that the Working Party did not include any women, nor anyone from Latin America, Africa or from civil law jurisdictions in Asia. No IBA committee would be similarly structured today, and indeed subsequent committees to update the Rules have been much more geographically and gender diverse.