APAG Webinar On The 2020 IBA Rules: Key Takeaways (Part 2)

• Published date: 29 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: OBLIN Attorneys at Law LLP
• Author: Madina Dumanova, Per Neuburger and Klaus Oblin

With the release of new Revised 2020 International Bar Association Rules on the Taking of Evidence in International Arbitration (2020 IBA Rules), on 21 January 2020, the Asia Pacific Arbitration Group (APAG), with the support of the IBA Arbitration Committee and the IBA Asia Pacific Regional Forum, concluded 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 make predictions on how they will shape arbitral practice in the future. Part one of the webinar series was discussed in our previous newsletter. The following provides an account of part two, focusing on translation requirements for document production between parties, late document production requests as a ground for their refusal, and privilege and confidentiality-related issues in arbitration.

Translation Requirements of Produced Documents

Possible challenges

The speakers started the webinar by addressing the newly introduced Article 3.12. (d) of the 2020 IBA Rules, which stipulates that 'Documents to be produced in response to a Request to Produce need not be translated unless the Parties agree otherwise or Tribunal decides otherwise'.

This revision shifts the burden of translation on the Party relying on and submitting the document into the record and may present the following challenges:

• It opens up a new route for tactical games since a party may 'flood' the other party with a huge volume of irrelevant or trivial documents in a foreign language;
• It increases the time and cost burden on the party requesting the document, especially when the parties have substantially unequal bargaining powers;
• It creates contextual translation challenges.

Effect of the language of the arbitration

Speakers also addressed whether the agreement of the parties on the language of the arbitration will affect Article 3.12. (d) since the language of the provision allows parties to depart from the 'no translation' rule. The speakers have noted that party stipulation of the language of arbitration applies only with respect to the documents that are created within the arbitration proceedings and therefore cannot backtrack to documents that are initially produced in another language. In other words, the choice of language of the parties has a limited scope and cannot apply to document...