Revised IBA Rules on the Taking of Evidence in International Arbitration
It is well known that party autonomy and flexibility are among the most significant advantages of arbitration, especially in international disputes. To ensure this flexibility, the arbitration rules of most arbitral institutions do not contain specific provisions regarding the taking of evidence, leaving the parties free to shape the way the arbitration is conducted.
However, it is not always easy for parties to international arbitration, often coming from very different jurisdictions, to agree on how to conduct the discovery phase of the arbitral proceding. To meet this need, in 1983 the International Bar Association (“IBA”) adopted the first edition of the Rules on the Taking of Evidence (“IBA Rules”).
The IBA Rules have been updated over the years. The latest changes are mostly aimed at adapting the arbitration procedure, and in particular the pre-trial phase, to rapid technological progress, so as to make the taking of evidence faster, more effective and safer.
In fact, with the amendment of December 17, 2020, the new Rules mention the issues of cyber security and data protection, providing that the consultation between the parties and arbitral tribunal on evidentiary issues may address, among others, the treatment of any issues of cybersecurity and data protection.
The possibility of “Remote Hearings” is expressly provided for, being the same defined as hearing conducted, for the entire hearing or parts thereof, or only with respect to certain participants, using teleconference, videoconference or other communication technology by which persons in more than one location simultaneously participate.
Art. 8 of the new Rules provides at the request of a Party or on its own motion, the arbitral tribunal may, after consultation with the parties, order that the evidentiary hearing be conducted as a remote hearing. In that event, the arbitral tribunal shall consult with the parties with a view to establishing a remote hearing protocol to conduct them efficiently, fairly and, to the extent possible, without unintended interruptions. The protocol may address the technology to be used, advance testing of the technology or training in use of the technology, the starting and ending times considering, in particular, the time zones in which participants will be located, the way documents may be placed before a witness or the arbitral tribunal and measures to ensure that witnesses giving oral testimony are not improperly influenced or distracted.
Additional issues on which the IBA has acted in the recent 2020 amendments concern the manner in which documents are produced. The new Rules now provide in Article 3(5) that, if the tribunal so requests, the parties may respond to the objections of the other party to the production of documents. Paragraph 7 of the same article allows the arbitrators to rule on the objection without the need to hear the parties further.
Article 4 (6) of the new Rules has now been amended to clarify that second-round witness statements may address new factual developments that could not have been addressed in a previous witness statement. A similar rule is established for the reports of party experts (Art. 5(3)).
In addition, a new provision has been included which explicitly provides for the power of the arbitral tribunal to exclude illegally obtained evidence (Art. 9). Considering that different national laws regulate the rules on the admissibility of illegally obtained evidence differently, tribunal’ decisions on this issue may vary accordingly, which explains the lack of a definition of “illegally obtained evidence” in the new Rules.