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United Kingdom: New IBA Rules on the Taking of Evidence in International Arbitration
Sep 07 2010

The International Bar Association (IBA) has adopted the new IBA Rules on the Taking of Evidence in International Arbitration (the new IBA Rules), which have since replaced the 1999 version of the Rules.

Like the 1999 Rules, the new IBA Rules acknowledge that expansive documentary discovery is usually inappropriate in international arbitration and also preserve the arbitral tribunal's discretion to determine the admissibility, relevance, materiality and weight of the evidence.

Parties to arbitrations, as well as arbitral tribunals, are free to adopt the new IBA Rules (in whole or in part) to govern arbitration proceedings, or they may vary them or use them as guidelines in developing their own procedures. The new IBA Rules are not intended to limit the flexibility that is inherent in, and an advantage of, international arbitration and parties and arbitral tribunals are free to adapt the Rules to suit the particular circumstances of each arbitration.

The key updates in the new IBA Rules include the following:

  • Early consultation (Article 2): The new IBA Rules contain an obligation on the tribunal to consult the parties at the earliest appropriate time with a view to agreeing on an efficient, economical and fair process for taking evidence. There is also a non-exhaustive list of matters that such 'consultation' may address.
  • Requests for documents (Article 3): There is more detailed guidance to the tribunal on how to address requests for documents or information maintained in electronic form - so-called 'e-disclosure' - as well as more detailed guidance as to requests for documents in the possession of third parties.
  • Confidentiality (Article 3(13)): The new IBA Rules expand confidentiality protections in relation to documents produced pursuant to document requests, documents submitted by a party in support of its own case and documents introduced by third parties.
  • Expert reports (Article 5): There is greater clarity in relation to the contents of expert reports, in particular the requirement to describe the instructions given to the expert and a statement of his or her independence from the parties, legal advisers and tribunal. The new IBA Rules also anticipate the provision of evidence in reply to expert reports.
  • Oral testimony (Article 8(1)): The new IBA Rules provide for witnesses to appear to give oral testimony at a hearing only if their appearance has been requested by any party or the tribunal. The use of modern technology, such as video conferencing, is also permitted under the new IBA Rules.
  • Legal privilege (Article 9(3)): There is more specific guidance in relation to issues of legal impediment or privilege, including the need to maintain fairness and equality, particularly if the parties are subject to different legal or ethical rules.
  • Good faith (Preamble and Article 9(7)): The new IBA Rules incorporate an express requirement of good faith in taking evidence and give the tribunal the power to consider any lack of good faith when awarding costs.
  • Non-commercial application: The word 'commercial' has been deleted from the title of the new IBA Rules, in recognition of the potential equal application to 'non-commercial' arbitrations such as investment treaty-based disputes.

The new IBA Rules have built on the areas in which the 1999 Rules could be refined or improved, particularly in light of the practical developments of the last decade, such as electronic disclosure. Overall, the new IBA Rules represent a useful harmonisation of procedures used in both common law and civil law systems, and users of international arbitration should consider selecting them in their arbitration clause or adopting them once proceedings commence.