Since being issued in 1999, the IBA Rules on the Taking of Evidence in International Commercial Arbitration have gained wide acceptance within the international arbitral community. The original Rules were issued as a resource to parties and to arbitrators “in order to enable them to conduct the evidence phase of international arbitration proceedings in an effi cient and economical manner”.
The IBA Rules of Evidence are part of a growing body of “soft law” promulgated by institutions around the world. As such they are not binding on the parties to an arbitration unless expressly adopted in the arbitration clause, the parties’ agreement, or at the commencement of or during the arbitration. As is pointed out in the Foreword to the Rules, they may be varied or used as guidelines by the Arbitral Tribunal and the parties in developing their own procedures.
It has been remarked that the way in which the evidentiary hearing in a typical international arbitration is conducted these days, even where the governing law is a civil law, the seat is in a civil law country and the arbitrators are all from civil law jurisdictions, bears much more resemblance to what would take place in the English High Court than to proceedings in a French, German or US court. The revisions that the Rules now incorporate do nothing to move away from the position. Whilst not reviewing the full text of the Rules here, it is noteworthy that the revisions are again aimed, in part, at rendering international arbitration a more economic option for resolving disputes, as with the UNCITRAL Arbitration Rules. For example, there is a new requirement for the Tribunal to consult the parties early and invite them to consult each other “with a view to agreeing an effi cient, economical and fair process for the taking of evidence”. The Rules also provide that the parties should consult as to the “promotion of effi ciency, economy and conservation of resources in connection with the taking of evidence”.
One of the traditional selling points for arbitration, certainly from an English law point of view, has been that the proceedings are confi dential. Some institutional rules expressly provide for confi dentiality (for example the LCIA Rules). English common law relies on precedent. The same cannot be said in many other jurisdictions, be they civil or common law, and it comes as a surprise to many from this jurisdiction that confi dentiality is not a given in many overseas jurisdictions. The Rules now provide how fact and expert testimony will be prepared and how documents will be dealt with: they also deal with “the level of confidentiality protection to be afforded to evidence in the arbitration”. This provides an opportunity for discussion to take place about the extent to which the proceedings will be confi dential, if not already provided for.
The Rules continue to deal with “disclosure of documents” and in particular the handling of electronic documentation, witnesses of fact, experts, the evidentiary hearing and the admissibility and assessment of evidence.
The revised IBA Rules of Evidence are available to download at www.tinyurl.com/iba-arbitration-guidelines.
It is anticipated that these Rules will gain further currency throughout the international arbitral community, although whether they will achieve the objective of providing a cost effective alternative remains to be seen: the proof of the pudding will be in the eating.