New IBA Rules on the Taking of Evidence in International Arbitration

Article by Nick Marsh and Maria Alcalde

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, which were adopted on 29 May 2010, 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...