The International Bar Association Adopts New Rules on the Taking of Evidence in International Arbitration

The International Bar Association (IBA) has approved a new version of its Rules on the Taking of Evidence in International Arbitration. The revised version (discussed here) was approved with minor amendments. The revised Rules will apply to all arbitrations in which the parties agree to apply the IBA Rules after May 29, 2010.

Among the key updates and revisions are the following:

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. It also includes a non-exhaustive list of matters which such ‘consultation’ may address.

Greater guidance to the tribunal on how to address requests for documents or information maintained in electronic form – so-called ‘e-disclosure.’ Similarly, the revisions give greater guidance as to requests for documents in the possession of third parties.

Expansion of confidentiality protections respecting both documents produced pursuant to document requests and documents submitted by a party in support of its own case and documents introduced by third parties.

Greater clarity respecting the contents of expert reports and 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 revised IBA Rules also foresee the provision of evidence in reply to expert reports.

An obligation on witnesses to appear for oral testimony at a hearing only if their appearance has been requested by any party or the tribunal; the revised IBA Rules also provide for the use of videoconference or similar technology.

More specific guidance respecting issues of legal impediment or privilege, including the need to maintain fairness and equality particularly if the parties are subject to different legal or ethical rules.

Incorporation of an express requirement of good faith in taking evidence coupled with an empowerment of the tribunal to consider lack of good faith in the awarding of costs.

Deletion of the word ‘commercial’ from the title, in recognition of the potential equal application to ‘non-commercial’ arbitrations such as investment treaty-based disputes.

The final version is available for download here.

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