5 March 2021
The 2020 revision to the International Bar Association’s (IBA) influential Rules on the Taking of Evidence in International Arbitration (the Rules) was released on 17 February 2021. The revised Rules, adopted in December 2020, notably address opportunities and challenges associated with the use of new technologies in arbitration and implement a variety of other changes intended to conform the Rules with currently prevailing procedural and evidentiary practices. The 2020 Rules replace the 2010 edition. An updated Commentary on the Rules (2020) has also been released.
Notable additions include provisions to accommodate the expanded use of videoconference and other communications technology for arbitral hearings and to heighten awareness of and attention to issues of cybersecurity and data protection. Another new provision addresses potential exclusion of evidence obtained illegally. Pragmatic adjustments to Article 3, on documentary evidence, include allowing for replies to objections to document requests and clarification as to the circumstances where translations of documents must be supplied. Practical changes to some other articles of the Rules include expanding the ability of witnesses and experts to respond to new developments in a second round of written witness statements/expert reports and affording more flexibility for some direct oral testimony to be provided by a witness or expert at the hearing.
The most notable revisions are further described below.
Availability of remote hearings and obligation to establish a remote hearing protocol
In light of the increasing use of technology to conduct hearings and, more particularly, the exceptional circumstances created by the Covid-19 pandemic worldwide, the 2020 Rules add a new Article 8.2 on the conduct of remote hearings and an expansive definition of “remote hearing” as one utilizing “teleconference, videoconference or other communication technology.” The previous default rule of personal appearance of witnesses at a hearing unless the arbitral tribunal allowed otherwise is replaced by wording allowing the tribunal, after consultation with the parties, to order the hearing to be conducted remotely, in whole or part, at the request of any party or on its own initiative. This follows a trend seen in the latest arbitration rules revisions of the ICC, LCIA and other major institutions.
A Remote Hearing Protocol that may address various technical, logistical and procedural matters is to be established in consultation with the parties. Further guidance is included in the Commentary.
Consideration of cybersecurity and data protection
The tribunal’s obligation to consult the parties early in the proceedings on various evidentiary issues listed in Article 2.2 now includes, to the extent applicable, consideration of issues relating to cybersecurity and data protection, including data privacy. Along with other major organisations, the IBA has been active in producing guidance in this area. The draft ICCA-IBA Roadmap to Data Protection in International Arbitration and the ICCA-New York City Bar-CPR Protocol on Cybersecurity in International Arbitration are examples of resources available to guide parties and arbitral tribunals in understanding the underlying issues and in finding appropriate solutions.
Exclusion of illegally obtained evidence
New Article 9.3 of the 2020 Rules allows a tribunal to exclude evidence obtained illegally on its own initiative or at a party’s request. The IBA Rules had previously been silent on the issue. The Commentary on the 2020 Rules confirms that in the absence of consensus among national laws and given the wide range of potentially relevant circumstances, no list of or examples of illegality are included in Article 9.3 and discretion is left to the arbitral tribunal to determine admissibility of such evidence in any particular case.
Pragmatic updates to document production procedures
Thanks to the extensive experience of application of or influence of Article 3 on document production following adoption of the 1999 IBA Rules, including as to arbitrations not otherwise governed by the Rules, a number of updates and refinements had already been made in the Rules’ 2010 revision. A small number of additional pragmatic changes are now made to Article 3 in the 2020 Rules. A change to Article 3.5 recognizes the prevailing practice of arbitral tribunals permitting a requesting party to respond to a requested party’s objections to document requests. A change to Article 3.7 likewise recognizes that arbitral tribunals and parties generally consult about the document production process and its timetable early on at a case management conference or its equivalent, obviating the need for a tribunal to further consult with the parties before considering and ruling on document requests following any objections and responses thereto. Changes to Article 3.12 make it clear that a document introduced by a party as evidence must be accompanied by a translation if it is in a language other than that of the arbitration but that translation is not required of documents produced by a party in response to a request for production.
Other practical adjustments to reflect contemporary arbitral practice
In addition to the foregoing, several additional changes are made to align the IBA Rules with procedural practices that have been become widely used by the arbitration community in recent years. Articles 4.6 and 5.3 of the 2020 Rules expand the scope of a second round of witness statements and expert reports beyond responding only to matters not previously presented by another party in the arbitration, now also permitting these to, respectively, respond to “new factual developments” or “new developments” that “could not have been addressed in a previous [witness statement/expert report].” Article 8.5 is changed to recognize that an arbitral tribunal may permit some oral direct testimony at a hearing even where a written witness statement or expert report is to serve as the witness or expert’s direct testimony.
Finally, revised Article 9.5 states explicitly that the tribunal’s authority to make necessary arrangements to permit evidence to be presented or considered subject to suitable confidentiality protection, where applicable, also extends to documents to be produced by a party in response to production requests.
Conclusion
The revisions to the IBA Rules constitute a timely and forward-looking refinement of this important soft-law tool, helping it to retain its status as one of the main resources for the international arbitration community in respect of evidentiary matters.
For further information, please contact:
Roland Ziadé, Partner, Linklaters
roland.ziade@linklaters.com
