Revised IBA Rules on the Taking of Evidence in International Arbitration

The International Bar Association has released its revised Rules on the Taking of Evidence in International Arbitration (2020 IBA Rules). The 2020 IBA Rules were formally adopted on 17 December 2020 and mark the first update to the rules since the 2010 edition (2010 IBA Rules). The revisions to the rules reflect developments in global arbitration practice, including the emergence of remote hearings and the growing need for data protection and confidentiality.

The IBA Rules are commonly referred to as guidance or indeed formally adopted by tribunals as part of the applicable procedural rules in international arbitration. The revised 2020 IBA Rules will apply to all arbitrations incorporating the IBA Rules after 17 December 2020. We summarise the key updates below.

Availability of virtual / remote hearings

A new defined term for “Remote Hearing” has been introduced, reflecting the new norm of conducting hearings in whole or in part using communication technology. Tribunals are now required to consult with parties on establishing a “Remote Hearing Protocol” to ensure an effective, fair and uninterrupted way of conducting hearings remotely (Article 8). The “Remote Hearing Protocol” should include technical, logistical and procedural matters in consultation with the parties.

This marks a change from the position in the 2010 IBA Rules, which did not give any detailed consideration to remote hearings, and in fact noted that personal appearance of witnesses was expected unless the arbitral tribunal allowed otherwise.

Cybersecurity and Data Protection

The 2020 IBA Rules introduce an express provision on cybersecurity and data protection, highlighting the need to consider information security and the best way to protect shared data. The new provision states that the arbitral tribunal may consult the parties on these issues in early consultation, highlighting recent information security concerns and regulations in this space (Article 2).

Further guidance on these issues for parties and tribunals is provided in the ICCA IBA Roadmap to Data Protection in International Arbitration and the ICCA NYC Bar CPR Protocol on Cybersecurity in International Arbitration.

Confidentiality

While the 2010 IBA Rules clearly provided for confidentiality attaching to documents that are proactively submitted in arbitrations, the rules were silent as to whether such confidentiality protection applied to documents produced in response to a request for production. The 2020 IBA Rules explicitly extend the scope of confidentiality to documents that are produced in response to a request to produce (Article 9).

Documents and document production

A small number of pragmatic changes and refinements have been made in respect of Article 3 concerning documents and document production:

• Response to objections: the 2020 IBA Rules clarify that a party who has requested the production of documents may, if the arbitral tribunal so permits, respond to an objection from the relevant counterparty (Article 3.5). This revision clarifies that there is no automatic right of reply, although in practice, tribunals often permit replies in order to help distil the issues in dispute and to afford both parties the right to be heard.
• Consultations on requests to produce: to reflect current practice, the rules now state expressly that arbitral tribunals do not have to consult with the parties when considering requests to produce (Article 3.7) and that document requests can be ruled on without the need for an oral hearing.
• Translations: documents produced in response to a request for production are not required to be translated, placing the burden (and the cost) of translation on the party seeking to rely on the documents. Documents introduced by the parties as evidence are required to be translated if they are not in the language of arbitration (Article 3). Again, this change reflects common practice.

Witness Statements and Expert Reports

The 2020 IBA Rules now allow for revised or additional witness statements and expert reports to be submitted on the basis of “new developments that could not have been addressed in a previous” witness statement or expert report (Articles 4 and 5). In order to ensure that this process is not abused, new lay or expert evidence is limited to responsive evidence unless it is based on evidence that was not available to the parties when first-round statements were produced.

Tribunal Authority/Powers

It is now clear, as a result of deleted language in Article 6, that the arbitral tribunal has exclusive authority to decide on disagreements concerning tribunal-appointed expert requests for information or access to information (Article 6.3).

A new express provision has been included providing for the tribunal’s power to exclude illegally obtained evidence (Article 9). The rules are silent on the definition of “evidence obtained illegally”, leaving the determination to the law applicable to the dispute.

The updated IBA Rules include practical revisions which reflect the developments in international arbitration over the past decade. Prompted in particular by the greater use of remote hearing during the COVID-19 pandemic, the amendments recognise the greater use of technology in aide of dispute resolution, and endorse established trends and accepted practice in the areas of document management and evidentiary matters.