APAG Webinar On The 2020 IBA Rules: Key Takeaways (Part 1)

Published date08 March 2022
Subject MatterLitigation, Mediation & Arbitration, Arbitration & Dispute Resolution
Law FirmOBLIN Attorneys at Law LLP
AuthorMadina Dumanova, Per Neuburger and Klaus Oblin

On 17 February 2021, the International Bar Association (IBA) released its revised 2020 IBA Rules on the Taking of Evidence in International Arbitration (2020 IBA Rules), replacing the 2010 version of the Rules. The revision was triggered by the necessity to reflect developments in arbitration practice and to address the rapidly increasing role of technology in international arbitration. A detailed overview of the new 2020 IBA Rules has been provided in one of our previous newsletters.

To shed light on the most central issues related to the application of the revised 2020 IBA Rules, the Asia Pacific Arbitration Group (APAG), with the support of the IBA Arbitration Committee and the IBA Asia Pacific Regional Forum, conducted a two-part webinar series titled 'A practical guide to the 2020 Revision of the IBA Rules on the Taking of Evidence in International Arbitration.' Leading experts in the field of international arbitration were asked to analyze and discuss several revisions of the 2020 IBA Rules as well as to make predictions on how they will shape the arbitral practice in the future. The following will provide an account of the first part of the webinar series conducted on 19 November 2021 that focused on the issues of admissibility of illegally obtained evidence, typology of fraudulent documents, their treatment by arbitral tribunals, as well as the timing and format for document production.

Admissibility of illegally obtained evidence

The newly adopted 2020 IBA Rules introduce the concept of illegally obtained evidence under Article 9.3. and give broad discretion for the tribunal to exclude such evidence. However, it was argued that the provision does not specify what is meant by illegally obtained evidence and leaves its admissibility at the sole discretion of the tribunal.

To identify the applicable standard for determining whether a piece of evidence has been obtained illegally, participants discussed a number of past ICSID cases where tribunals dealt with the issue. It was established that the investor's role in illegally obtaining evidence was a distinct factor in the tribunal's decision to exclude the evidence that was alleged to be illegally obtained (Madenex v. the USA, EDF v. Romania) or admit (Caratube v. Kazakhstan, Yukos v. Russia, ConocoPhillips v. Venezuela). In other words, it was a pattern for tribunals to decide the admissibility of illegally obtained evidence based on the clean hands doctrine.

Moreover, the commentary to Article 9.3...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT