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Revised Evidence Rules from the International Bar Association

The IBA has adopted revised Rules on the Taking of Evidence in International Arbitration. The Rules are particularly attractive to parties that have different legal traditions regarding evidence. The updates cover new developments such as remote hearings and clarifications such as being able to respond to an objection to a request to produce. Other evidence rules are available if better suited for a dispute, such as the Nordic Arbitration Rules and the Prague Rules

The International Bar Association (the “IBA”) has revised its popular Rules on the Taking of Evidence in International Arbitration (the “Rules”). The Rules provide a basis for evidentiary procedures, which institutional or ad hoc rules may not cover. The Rules are particularly useful for parties that have different expectations of evidentiary procedures regarding matters such as witness evidence, document production and privilege. The IBA published the revisions last month and they demonstrate updates in two areas: new developments and clarification.

Examples of new developments include a definition of “Remote Hearing”, which is a hearing conducted, entirely or partially, using technology where individuals participate “in more than one location simultaneously”. This broad definition caters for the rise of remote hearings in their various forms owing to the pandemic and to a greater consideration of environmental factors. Article 8.2 builds on this new definition to provide that a tribunal can, after party consultation, order that a hearing be conducted remotely as well as establish a remote hearing protocol. The protocol may cover issues such as technology use, participants’ time zones and measures to prevent improper witness influence. At Article 2.2(e) the Rules also add consideration of cybersecurity and data protection to the early consultation on evidentiary issues, which follows on not only from the rise of virtual proceedings but also from the rise of privacy concerns, as reflected in the EU’s GDPR.

Furthermore, to reflect the greater focus on how to manage illegally obtained evidence, the tribunal may now expressly exclude this evidence, if requested or on its own motion, owing to a new Article 9.3. The Rules’ commentary highlights that the tribunal has a discretion to exclude in order to allow for the diverse approaches taken by national laws and tribunals regarding illegally obtained evidence.

Remaining updates mostly clarify practice. For instance, at Article 3.5 a party requesting documents may expressly submit a response to an objection of another party if directed by the tribunal, and at Article 3.12(d) documents produced in response to a request to produce need not be translated. Likewise, at Articles 4.6(b) and 5.3(b) revised and additional witness statements and party-appointed expert reports are respectively now expressly permitted if they respond to new developments that could not have been addressed in a previous statement or report.

The revisions were adopted on 17 December 2020 and provide welcome updates for users’ benefit. However, the Rules are not the only available models for evidentiary procedures. Other options exist if better suited to a potential dispute. For example, the Nordic Arbitration Rules and the Prague Rules provide a starting position of no document production orders. Moreover, while the Rules set out various requirements for what a witness statement should contain, the Nordic Arbitration Rules set out fewer requirements for their witness summaries.

For further information, including regarding which evidence rules may be best suited for potential disputes, please contact the dispute resolution team.

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