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Revision of the IBA Rules on the Taking of Evidence in International Arbitration

01/03/2021
The IBA Rules on the Taking of Evidence in International Arbitration (the "Rules") are a set of complementary rules adopted on 29 May 2010 by the International Bar Association ("IBA") that parties can refer to in an arbitration, regardless of the substantive or procedural laws governing the arbitration. Many suggest that their growing influence and the fact that they combine aspects of common and civil law are responsible for the Rules becoming the default guidelines that arbitral tribunals and parties consider applying in international arbitration proceedings.

On 17 December 2020, the IBA adopted a revised version of the Rules, which were published on 15 February 2021 (the "Revised Rules"). The Revised Rules provide for a new clarified and streamlined set of provisions. Failing any other indication, the Revised Rules will apply when parties refer to the IBA Rules in their arbitration agreements after 17 December 2020.

The aim behind the revision was not to completely overhaul the pre-existing Rules, but rather to adapt to the new challenges in relation to technology and to develop practices in the taking of evidence in international arbitration. 

The Revised Rules have addressed certain topics in particular, which we briefly summarise below.

Remote evidentiary hearings

Article 8.2 of the Revised Rules provides that "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 the Remote Hearing efficiently, fairly and, to the extent possible, without unintended interruptions".

The provision then lists a series of topics that may be addressed in this protocol (the technology to be used, the testing of this technology, the start and end given the different possible time zones in which the participants will be located, and importantly, measures to be taken to ensure that witnesses are not being improperly influenced or distracted).

Given the circumstances triggered by the Covid pandemic, this update is most opportune. The inability for parties, arbitrators and counsel to gather physically in one location has affected the conduct of arbitrations and has highlighted the need to anticipate and organise the conduct of virtual hearings. 

Cybersecurity and data protection

Pursuant to the new Article 2.2 of the Revised Rules, the arbitral tribunal may now consult the parties regarding evidentiary issues relating to cybersecurity and data protection.

Document production

New Article 3 of the Revised Rules introduces clarifications regarding the procedural stages for document production.

First, Article 3.4 of the Revised Rules introduces the possibility for a party requesting document production to respond, if so directed by the arbitral tribunal and within the time so ordered, to any objection from the party requested to produce.

In addition, the revised Article 3.12 brings clarifications regarding the form of documents submitted by the parties, whether they are submitted voluntarily or produced following a request to produce. Article 3.12 now provides that the parties or the arbitral tribunal may agree on other formal requirements. This possibility also existed in the 2010 Rules, but only with regard to two situations, namely the submission or production of electronic documents and the submission or production of multiple copies of documents that are essentially identical.

Finally, other amendments to the provisions related to form are that documents to be produced to the other party following a request need not be translated. However, documents in a language other than the language of the arbitration that are submitted to the arbitral tribunal shall be accompanied by translations.

Illegally obtained evidence

Importantly, pursuant to new Article 9.3 of the Revised Rules, the arbitral tribunal "may, at the request of a Party or on its own motion, exclude evidence obtained illegally.”

The Revised Rules do not venture into what constitutes illegally obtained evidence, as there is no applicable international standard in criminal and civil proceedings. Different laws and tribunals may assess the legality of evidence - or lack thereof - differently. Arbitral tribunals retain their discretion in deciding how to assess the legality of the evidence in view of the circumstances and the legal framework, and upon conclusion on the matter, may decide to exclude the evidence or not. The task force in charge of updating the Rules grappled with the idea of specific circumstances where evidence should be excluded. However the lack of consensus favoured a more prudent approach, as opposed to using terms such as "shall".

Confidentiality

Pursuant to a small but noteworthy addition to Article 9 of the Revised Rules, the arbitral tribunal may make sufficient arrangements to protect the confidentiality of the documents to be produced during document production. Previously, the Rules only mentioned the protection of "evidence to be presented or considered".

The Commentary on the Revised Rules mentions certain examples that may justify the need to protect confidentiality, such as situations in which the parties are competitors and situations where "a party may have a legitimate concern about disclosing commercial terms of its agreements with its customers or partners, or its know-how, trade secrets, product formulae or specifications, business plans and the like".

Authority of the arbitral tribunal regarding experts

Finally, Article 6.3 of the Revised Rules clarifies what already happens in practice in most arbitrations: the arbitral tribunal has the authority to rule on a conflict between a party and a tribunal-appointed expert, notably if the party refuses to grant the expert access to information through privilege. This was achieved by taking out the previous reference to the "same authority" that was granted to the tribunal-appointed expert in relation to the arbitral tribunal when requesting information or access from a party to the arbitration.

Conclusion

The latest revision is a welcome development that introduces clarifications and confirms current arbitral practice. More importantly, it illustrates the tendency for international arbitration to continue its fast-paced modernisation in keeping up with the current trends.
 
For the Fieldfisher International Arbitration Group:
Maxime Berlingin (Partner - Fieldfisher Brussels)
Marily Paralika (Partner – Fieldfisher Paris)
Ady van Nieuwenhuizen (Partner – Fieldfisher Amsterdam)
Louis Atyeo (Associate – Fieldfisher Brussels)

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