22 Sep 2020 Revision of the Iba Rules on the Taking of Evidence in International Arbitration
The IBA Rules on the Taking of Evidence in International Arbitration, first published in 1999, are a soft law instrument comprising only nine articles. The IBA rules combine both civil and customary practices for taking evidence and are often adopted in commercial and investment and international arbitration. Its objective is to create an effective evidence-gathering process by complementing laws as well as institutional and ad hoc rules for international arbitration, which are generally not specific enough to grasp the magnitude of the issues that may arise during the evidence-gathering process (see preamble, paragraph 1 of the IBA Rules 2020 and 2010). Similarly, with respect to Article 2.2 (which refers to the preliminary consultation of the arbitral tribunal with the parties on evidentiary issues), the Working Group amended the wording of the chapeau to include the phrase “where appropriate” to clarify that the IBA Rules do not require that all procedures described in Article 2.2 be appropriate for each arbitration. The 2016 report (which examined the acceptance of various IBA policies) noted that some survey participants had suggested that the IBA rules required the submission of documents for counterparty.  Although Article 2.2 has already included the word “may” in the treatment of issues that could be addressed in the evidence consultation (“[t]he evidence consultation may resolve these issues”), the Task Force concluded that it would be appropriate to place more emphasis on this point by adding “where appropriate”. One of the most significant changes in the 2020 revision was the inclusion of provisions on remote hearings. This change was driven by the public comments process. Several respondents noted that such a provision was missing from the proposed revisions and suggested that a provision be explicitly included in the text, making it clear that an arbitral tribunal`s review of the arbitration hearing extended to its power to order a remote hearing. Undoubtedly, the Covid-19 pandemic explains the enthusiasm to fill this apparent gap.
  2020 Rules, art. 8.1 (“Any witness (whose terms of reference include fact-finding witnesses and experts for the purposes of this Article) shall, subject to Article 8.3, appear to testify at the evidentiary hearing if that person`s appearance has been requested by a party or by the arbitral tribunal.”) (Emphasis added). See also the 2010 Regulations, art. 8.1 (equal).  See, for example, Methanex Corp v. United States, UNCITRAL Arbitration, Final Award on Jurisdiction and Substance, Part II, Chap. 1, ¶¶ 55–59 (CHAPTER 11 of NAFTA Arb. Trib., 3 August 2005) (with the exception of documents obtained through the hiring of investigators by an investor to enter and steal documents thrown from the defendant witness in a dumpster); Libananco Holdings v. Turkey, ICSID Case No ARB/06/8, Decision on the questions referred for a preliminary ruling, ¶¶ 72–82 (23. June 2008) (The respondent State`s use of police powers to intercept the plaintiff`s communications with defence counsel and witnesses necessitated the destruction of documents and the establishment of a firewall between the defendant`s criminal investigation and the arbitration lawyer); Ahongalu Fusimolohi v.
Fédération Internationale de Football Association, CAS Case No. 2011/A/2425 Award, ¶¶ 74–82 (8 March 2012) (rejection of the exclusion of evidence if it was first obtained by a journalist posing as a lobbyist who secretly recorded a meeting with officials during which he accepted corruption, and this evidence was later published in the newspaper); ConocoPhillips Petrozuata BV v. Republic of Venezuela, ICSID Case ARB/07/30, Decision on the Respondent`s Request for Reconsideration, Dissenting Opinion of Georges Abi-Saab, ¶¶ 24–32 (10. March 2014) (taking into account diplomatic cables made public via Wikileaks after being illegally hacked). To support this consultation, the 2020 Review Working Group advises courts and parties to turn to various protocols and roadmaps that can serve as a guide.5 The draft CICA-IBA Roadmap for Data Protection in International Arbitration (draft CICA-IBA Roadmap) is an example of this, which was submitted in February 2020 as draft public comments. First, it states that participation in international arbitration does not minimize the general obligations of arbitrators under the data protection laws applicable to them.6 The parties must therefore be aware of their own data protection obligations and ensure that they comply with those obligations. This may require the use of privacy notices for data complaints, minimization of the personal data they process, implementation of data security measures, and implementation of data breach procedures and data retention policies.7 Identify issues that may arise during arbitration and develop solutions with opposing attorneys and litigants in the early stages of consultation. will raise clear expectations from the outset.
Save costs and potential problems on the road. Article 4(6) of the IBA Rules 2020 has now been amended to clarify that second-round testimony “may relate to new factual developments that could not have been addressed in previous testimony,” whether or not reference is made in another party`s previous submissions:  Another change that the Working Group considered: but ultimately refused, there was a proposal that would provide that third parties could oppose the request for documents or testimony. in the section “Objections to requests for evidence: Articles 3.10 and 4.10”. While the IBA 2020 Rules include additional changes to other aspects of the evidentiary procedure in international arbitration, provisions relating to cybersecurity, privacy, remote hearings, direct testimony, and the exclusion of illegally obtained evidence will be a recurring topic of discussion in arbitration proceedings subject to these Rules. Therefore, parties to international arbitrations subject to the IBA 2020 Rules should be aware of the impact these changes may have on the time and cost of arbitration, including the benefits and setbacks they could represent for their advocacy strategies. The 2020 revision introduced clarifications focused on the effectiveness of the document preparation procedures under Article 3 (Documents) of the Rules. A new sentence has been inserted in Article 3.5 which provides that the arbitral tribunal may allow the party requesting the submission of documents to respond to an objection of the other party – an amendment that reflects good practice of arbitral tribunals. In international arbitration, the parties to the proceedings usually come from very different legal systems. If a French company hires a lawyer in the United States to initiate international arbitration against a government or company in Asia, what rules of evidence and procedure should govern the parties` disputes? The most common answer is the rules published by the International Bar Association (IBA) on the taking of evidence in international arbitration. The IBA Rules on the Taking of Evidence provide parties and arbitral tribunals from different legal backgrounds with uniform guidelines to harmonize the principles of evidence and procedure of civil and common law jurisprudence so that the taking of evidence is fair, economical and efficient.1 This blog post provides readers with an overview of key updates to the rules.