Article | IBA Revises Rules on the Taking of Evidence in International Arbitration

Disputing would like to thank Paul Lurie for alerting us to an interesting article published in Lexology on December 10th entitled IBA revises rules on the taking of evidence in international arbitration by Stephen Anway and George Von Mehren of the Cleveland, OH office of Squire, Sanders & Dempsey, LLP. Here is a summary:

While the revised IBA Rules maintain important aspects of the 1999 version, they introduced several changes intended to update and modernize practice in international arbitration. Key changes include:

Early consultation. Article 2.1 requires that the arbitral tribunal consult with the parties at the earliest appropriate time in the proceedings and invite them to consult with each other with a view to agreeing on an efficient, economical and fair process for the taking of evidence.

Identifying key issues. Article 2.3 encourages the arbitral tribunal to identify to the parties, as soon as it considers it to be appropriate, any issues that it may regard as relevant to the case and material to its outcome and/or for which a preliminary determination may be appropriate.

E-discovery. Article 3.3(a) permits a party requesting documents maintained in electronic form to identify specific files, search terms, individuals or other means of searching for such documents in an efficient and economical manner.

E-production. Article 3.12(b) provides that documents a party maintains in electronic form shall be submitted or produced in the form most convenient or economical to it that is reasonably usable by the recipients.

Confidentiality. Article 3.13 expands confidentiality protections in relation to produced documents, documents submitted into evidence and documents introduced by third parties.

Scheduling production. Article 3.14 allows an arbitral tribunal, after consultation with the parties, to schedule document production at different phases of the arbitration (interim relief, jurisdiction, liability, quantum, etc.).

Expert reports. Article 5(2) gives greater clarity concerning the contents of expert reports including the requirement to describe the instructions given to the expert and a statement of his or her independence.

Oral testimony. Article 8(1) provides for witnesses to appear to give oral testimony only if their appearance has been requested by a party or the tribunal. The use of modern technology, such as video conferencing, is also permitted.

Privilege. Article 9.3 lists criteria that the arbitral tribunal may consider when deciding issues of legal privilege.

Good faith. Article 9.7 allows the arbitral tribunal, when assigning the costs of the arbitration (including costs in connection with the taking of evidence), to take into account the failure of a party to act in good faith in the taking of evidence.

The entire article may be read here (free login required).

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